Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability. (b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing. (c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kendle International Inc)
Access to Information. (a) From the date hereof until the Closing Date, the Seller Parties will (a) afford the Purchaser and each of its Representatives, all cooperation reasonably necessary or customary in connection with any financing relating to the transactions contemplated hereby, (b) furnish to the Purchaser and its Representatives such financial, operational and other data and information related to the Transferred Business and the Transferred Assets, as the Purchaser shall reasonably request and (c) furnish to any prospective lenders or investors in the Purchaser, such financial, operational and other data and information related to the Transferred Business and the Transferred Assets, as shall be reasonably requested, subject to the execution by any such prospective lender or investor of a confidentiality agreement that is reasonably satisfactory to Parent. 27 (b) In order (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to facilitate the offices, properties, books and records resolution of Seller, each Company and each Subsidiary any Claims made against or incurred by the Seller Parties relating to the BusinessTransferred Assets or the Assumed Liabilities, (ii) furnishto respond to any inquiry, and will cause each 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 request or demand from any Governmental Authority relating to the Business as such Persons may reasonably request and Transferred Assets or the Assumed Liabilities or (iii) instruct the employees, counsel and financial advisors of Seller to comply with any reporting or filing requirement imposed by any Company Governmental Authority or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations by Law relating to properties used in the Business. 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 Transferred Assets or the Business. Notwithstanding Assumed Liabilities, for a period of seven years after the foregoingClosing, unless required by TUPE, Buyer shall not have access the Purchaser will cause the Company to (x) retain the Books and Records relating to the Transferred Assets or the Assumed Liabilities relating to periods prior to the Closing Date Closing, (y) upon reasonable notice, afford the officers, employees, agents and representatives of the Seller reasonable access (including the right to personnel records make, at the Seller’s expense, photocopies of any information not reasonably considered by the Company or any Subsidiary relating the Purchaser to individual performance or evaluation recordsbe confidential), medical histories or other information which in Seller's good faith opinion is sensitive or during normal business hours, to such Books and Records and (z) furnish the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents Representatives reasonable access to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer assistance in connection with any audit, investigation, dispute or litigation or Claim (at the Purchaser’s expense); provided that the Company will notify the Seller at least 60 days in advance of destroying any other reasonable business purpose such Books and Records in order to provide the Seller the opportunity to access such Books and Records in accordance with this Section 7.03(b). The Seller may retain copies of any Books and Records relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with Transferred Assets or the conduct of Assumed Liabilities relating to periods prior to the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' feesClosing, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with only to the foregoingextent required by applicable Law.
(c) Sellers and In order to (i) facilitate the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated resolution of any Claims made against or incurred by the Commitment Letters, including, without limitationPurchaser or the Company relating to the Transferred Assets or the Assumed Liabilities, (Aii) assisting in to respond to any inquiry, request or demand from any Governmental Authority or (iii) to comply with any reporting or filing requirement imposed by any Governmental Authority or by Law relating to the preparation of offering circulars, confidential information memoranda and rating agency presentations Transferred Assets or the Assumed Liabilities (including with respect to a public offering of securities by the Debt FinancingsCompany or any of its Affiliates), for a period of seven years after the Closing the Seller Parties will (Bx) using reasonable efforts to prepare retain the Books and deliver such financial and statistical information Records relating to the Business as may Transferred Assets or the Assumed Liabilities and the Company relating to periods prior to the Closing that have not otherwise been delivered to the Purchaser or the Company, (y) upon reasonable notice, afford the officers, employees, agents and representatives of the Purchaser and the Company reasonable access (including the right to make, at the Purchaser’s or the Company’s expense, photocopies of information not reasonably considered by Parent to be reasonably requested confidential), during normal business hours, to such Books and Records and (z) furnish the Purchaser and the Company reasonable assistance in connection with any Claim (at the Debt FinancingsSeller’s expense); provided that Parent, Scimed or the Seller will notify the Purchaser and the Company at least 60 days in advance of destroying any such Books and Records in order to provide the Purchaser and the Company the opportunity to access such Books and Records in accordance with this Section 7.03(c). The Purchaser and the Company may retain copies of any Books and Records relating to the Transferred Assets or the Assumed Liabilities relating to periods prior to the Closing as required by any Law or by the Company’s document retention or regulatory compliance policies. (d) Notwithstanding the foregoing, Sections 7.02(a), (Cb) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (Ec) providing reasonable assistance shall not apply with respect to Tax matters and the review and granting provisions of security interests in collateral for the Debt FinancingsSection 7.09 shall apply. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.28
Appears in 1 contract
Samples: Purchase and Sale Agreement
Access to Information. (a) From Upon reasonable notice, and subject to applicable Law, the date hereof until Company shall (and shall cause its Subsidiaries to) afford to Parent, its Affiliates and its officers, agents, control persons, employees, consultants, professional advisers (including attorneys, accountants and financial advisors) and Financing Parties (“Representatives”) reasonable access during normal business hours, under supervision (which, at the Closing DateCompany’s discretion, Seller will may be direct supervision) of a designated employee or other Representative of the Company, and upon reasonable prior notice to the Company during the period prior to the Effective Time, to all of its and its Subsidiaries’ properties, books, Contracts, commitments, records, officers and employees and, during such period as Parent may from time to time reasonably request, and during such period the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information concerning it, its Subsidiaries and each of their respective businesses, properties and personnel as Parent may reasonably request, including with respect to the Company’s compliance program; provided, however, that the Company may restrict the foregoing access and the disclosure of information to the extent that, in the good faith judgment of the Company, (i) give, and will cause each any Law applicable to the Company and each Subsidiary or its Subsidiaries requires the Company or its Subsidiaries to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable restrict or prohibit access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Businessany such properties or information, (ii) furnishthe information is subject to confidentiality obligations to a Third Party, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct such disclosure would result in disclosure of any trade secrets of Third Parties, (iv) disclosure of any such information or document could result in the employeesloss of attorney-client privilege (provided, that the Company and/or its counsel and financial advisors shall use their reasonable best efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for such disclosure in a manner that does not result in the loss of Seller attorney client privilege) or any (v) such access would unreasonably disrupt the operations of the Company or any Subsidiary of its Subsidiaries; provided, however, that with respect to cooperate with Buyer in its investigation clauses (i) through (iv) of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 8.07(a), the Company shall be conducted in use its commercially reasonable best efforts to (A) obtain the required consent of such manner third party to provide such access or disclosure or (B) develop an alternative to providing such information so as not to interfere unreasonably with address such matters that is reasonably acceptable to Parent and the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityCompany.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with With respect to the Debt Financingsinformation disclosed pursuant to Section 8.07(a), (B) using reasonable efforts each of Parent and the Company shall comply with, and shall cause such party’s Representatives to prepare comply with, all of its obligations under the Confidentiality Agreement, which agreement shall remain in full force and deliver such financial and statistical information relating to the Business as may be reasonably requested effect in connection accordance with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerits terms.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Becton Dickinson & Co)
Access to Information. (a) From the date hereof until of this Agreement to the Closing DateEffective Time, Seller will (i) givethe Company will, and will cause each Company its subsidiaries, officers, directors, employees, and each Subsidiary agents upon reasonable notice to, afford to giveofficers, Buyeremployees, and agents of the Purchaser and its counselaffiliates and the banks, other financial advisorsinstitutions, auditors and other authorized representatives investment bankers working with the Purchaser, and its respective officers, employees, and agents, complete access at all reasonable access times to the officesits officers, employees, agents, properties, books books, records, and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishcontracts, and will cause each Company furnish the Purchaser and each Subsidiary to furnishits affiliates and the banks, to Buyerother financial institutions, its counseland investments bankers working with the Purchaser, financial advisorsall financial, auditors operating, and other authorized representatives such financial and operating data and other information relating to the Business as such Persons may they reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityrequest.
(b) On The Purchaser will hold and after will cause its directors, officers, agents, employees, consultants, and advisors to hold in confidence, unless compelled to disclose by judicial or administrative process or, in the Closing Datewritten opinion of its legal counsel, Seller will afford promptly to Buyer by other requirements of law, all documents and information concerning the Company and its agents reasonable access subsidiaries furnished to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred persons in connection with the foregoingtransactions contemplated by this Agreement (except to the extent that such information can be shown to have been (i) previously known by such persons from sources other than the Company, or its directors, officers, representatives or affiliates, (ii) in the public domain through no fault of such persons, or (iii) later lawfully acquired by such persons on a non-confidential basis from other sources who are not known by the Purchaser to be bound by a confidentiality agreement or otherwise prohibited from transmitting the information to the Purchaser by a contractual, legal, or fiduciary obligation) and will not release or disclose such information to any other person, except its directors, officers, agents, employees, consultants, and advisors, in connection with this Agreement who need to know such information. If the transactions contemplated by this Agreement are not consummated, such confidence shall be maintained and, if requested by or on behalf of the Company, the Purchaser will, and will use all reasonable efforts to cause its auditors, attorneys, financial advisors, and other consultants, agents, and representatives to, return to the Company or destroy all copies of written information furnished by the Company to the Purchaser or its agents, representatives, or advisors. It is understood that the Purchaser will be deemed to have satisfied its obligation to hold such information confidential if it exercises the same care as it takes to preserve confidentiality for its own similar information.
(c) Sellers and No investigation pursuant to this SECTION 5.6 will affect any representations or warranties of the Companies agree to provide such cooperation as may be reasonably requested by Buyer parties in timely obtaining this Agreement or the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect conditions to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors obligations of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access parties to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthis Agreement.
Appears in 1 contract
Access to Information. (a) From The Company and its subsidiaries shall afford to Parent and Subsidiary and their respective accountants, counsel, financial advisors and other representatives (the date hereof until "Parent Representatives") and Parent and its subsidiaries shall afford to the Closing DateCompany and its accountants, Seller will counsel, financial advisors and other representatives (the "Company Representatives") full access during normal business hours throughout the period prior to the Effective Time to all of their respective properties, books, contracts, commitments and records (including, but not limited to, Tax Returns) and, during such period, shall furnish promptly to one another (i) givea copy of each report, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors schedule and other authorized representatives reasonable access document filed or received by any of them pursuant to the officesrequirements of federal or state securities laws or filed by any of them with the SEC in connection with the transactions contemplated by this Agreement or which may have a material effect on their respective businesses, properties, books properties or personnel and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 concerning their respective businesses, properties and personnel as Parent or Subsidiary or the Business Company, as such Persons the case may be, shall reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any request; provided that no investigation pursuant to this Section 7.1 shall be conducted amend or modify any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Merger. Parent and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Parent Representatives to hold, and the Company and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Company Representatives to hold, in such manner strict confidence all non-public documents and information furnished to Parent and Subsidiary or to the Company, as not to interfere unreasonably the case may be, in connection with the conduct transactions contemplated by this Agreement, except that (i) Parent, Subsidiary and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals, the Company Required Statutory Approvals and the Company Stockholders' Approval and (ii) each of Parent, Subsidiary and the business of Seller or the Business. Notwithstanding the foregoing, unless Company may disclose any information that it is required by TUPE, Buyer shall not have access prior law or judicial or administrative order to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitydisclose.
(b) On In the event that this Agreement is terminated in accordance with its terms, each party shall promptly redeliver to the other all non-public written material provided pursuant to this Section 7.1 and after the Closing Dateshall not retain any copies, Seller will afford promptly to Buyer and its agents reasonable access to its books extracts or other reproductions in whole or in part of accountsuch written material. In such event, financial all documents, memoranda, notes and other records writings prepared by Parent or the Company based on the information in such material shall be destroyed (including accountant's work papersand Parent and the Company shall use their respective reasonable best efforts to cause their advisors and representatives to similarly destroy their documents, memoranda and notes), information, employees and auditors to the extent necessary or useful for Buyer such destruction (and reasonable best efforts) shall be certified in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any writing by an authorized officer supervising such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingdestruction.
(c) Sellers The Company shall promptly advise Parent and Parent shall promptly advise the Companies agree to provide such cooperation Company in writing of any change or the occurrence of any event after the date of this Agreement having, or which, insofar as may can reasonably be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersforeseen, including, without limitation, (A) assisting in the preparation future may have, any material adverse effect on the business, operations, properties, assets, condition (financial or other), results of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors operations or prospects of the Companies available for due diligence meetings Company and for participation in meetings with rating agencies its subsidiaries or Parent and prospective lenders and investorsits subsidiaries, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to as the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Sellercase may be, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyertaken as a whole.
Appears in 1 contract
Access to Information. (a) From and after the date hereof until the earlier of the Closing DateDate or the termination of this Agreement in accordance with its terms, Seller will upon reasonable advance notice, and subject to restrictions contained in the confidentiality agreements to which the Group Companies are subject, the Company shall (i) give, provide to Buyer and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the officesall employees, advisors (including outside accountants), premises and properties, books and books, records of Seller(with respect to Tax records, each Company and each Subsidiary relating only to the Businessextent solely related to the Company or any of its Subsidiaries), Contracts, and other documents, in each case, of or pertaining to the Group Companies during normal business hours (in a manner so as to not interfere with the normal business operations of any Group Company), (ii) furnish, furnish to Buyer and will cause each 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 Business Company or any of its Subsidiaries (such as such Persons imaged servicing files) as is normally prepared by the Company and as Buyer may reasonably request and (iii) instruct make reasonably available to the employeesauthorized representatives of Buyer, counsel the employees of the Company, Seller or their respective Subsidiaries in respect of the Company and financial advisors its Subsidiaries whose assistance and expertise is reasonably necessary to assist Buyer in connection with Buyer’s preparation to integrate the Company, its Subsidiaries and assets and the personnel related thereto with Buyer’s organization following the Closing (such integration, the “Pre-Closing Integration”). All such information shall be treated as confidential information pursuant to the terms of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein. Notwithstanding anything to the contrary in this Agreement, (A) the Company shall not be required to disclose (1) any information to Buyer if such disclosure would be reasonably likely to jeopardize any attorney-client or other legal privilege or (2) any Tax Return filed by Seller or any of its Affiliates (other than a Tax Return that includes only the Company or any Subsidiary of its Subsidiaries (after giving effect to cooperate with Buyer in the Restructuring Transactions)), or any related material, except for materials or portions thereof related solely to the Company and its investigation of the BusinessSubsidiaries, including (without limitationB) any Phase I environmental investigations relating such access provided to properties used in the Business. Any investigation Buyer pursuant to this Section 7.3(a) shall be conducted at Buyer’s expense, in such manner as not to interfere unreasonably accordance with the conduct of the business of Seller Law (including any applicable antitrust, bank regulatory or the Business. Notwithstanding the foregoingcompetition law), unless required by TUPE, Buyer shall not have access fiduciary duty or any binding agreement entered into prior to the Closing Date date hereof, at a reasonable time, under the supervision of Seller’s personnel and in such a manner as to personnel records maintain confidentiality and not to unreasonably interfere with the normal operations of the Company and its Subsidiaries and (C) Seller will not be required to provide to Buyer access to or copies of any Company records or files (including, but not limited to, any Subsidiary relating to individual performance or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or personnel file of any employee of any Group Company) the disclosure of which could subject any Seller, the Company or any Subsidiary of their respective Affiliates to risk of liabilityliability or violation of Law.
(b) On Without limiting the generality of Section 7.3(a), Parent and Seller, on the one hand, and Buyer on the other hand, shall each nominate a representative to act as the primary contact persons and decision-makers with respect to all matters relating to the Pre-Closing Integration (the “Integration Coordinators”). The initial Integration Coordinators shall be designated by Parent and Seller, on the one hand, and Buyer, on the other hand, as soon as practicable after the date hereof. Each of Parent and Seller, on the one hand, and Buyer on the other hand, shall be entitled to replace its Integration Coordinator. Except as specifically set forth in this Agreement, each Integration Coordinator will have the authority and responsibility to:
(i) oversee matters relating to the respective appointing Party that relate to the Pre-Closing DateIntegration;
(ii) make or otherwise coordinate appropriate decisions on day-to-day issues relating to the Pre-Closing Integration;
(iii) coordinate the technical aspects of the Pre-Closing Integration and consult on the operation and management of the Pre-Closing Integration; and
(iv) monitor the appointing Party’s compliance with its obligations under this Agreement as they relate to the Pre-Closing Integration. Parent and Seller, on the one hand, and Buyer, on the other hand, shall cause the Integration Coordinators to meet on a weekly basis or with such other frequency as they may agree to discuss the status and progress of the Pre-Closing Integration and concerns of the Parties regarding the same. Should a dispute arise under this Agreement between the Parent and Seller, on the one hand, and Buyer, on the other hand, with respect to the Pre-Closing Integration, the Integration Coordinators shall negotiate in good faith on behalf of such appointing Party to resolve any such disputes. If the Integration Coordinators are unable to resolve such dispute within ten (10) Business Days after the date of such dispute, Parent and Seller, on the one hand, and Buyer, on the other hand, shall have all applicable remedies available to it under this Agreement. Nothing in this Section 7.3(b) shall require the cooperation of Parent, Seller will afford promptly or the Company prior 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 the Closing to the extent necessary it would interfere unreasonably with the business or useful for Buyer in connection with any auditthe other operations of Parent, investigationSeller, dispute or litigation the Company or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Sellertheir respective Subsidiaries. Buyer shall bear shall, promptly upon request by Seller, reimburse Seller for any Losses suffered and for all of the documented and reasonable out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred suffered by Seller, Parent, the Companies Company or any of their Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerpursuant to this Section 7.3(b).
Appears in 1 contract
Access to Information. (a) From Seller shall cause PGE, PGH II and each --------------------------------- of PGE's and PGH II's respective subsidiaries to afford to the date hereof until NW Natural Representatives, and NW Natural shall and shall cause each of its subsidiaries to afford to the Seller Representatives, in each case, reasonable access, during normal business hours throughout the period prior to the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, all of their properties, books books, contracts, personnel, commitments and records of Sellerrecords; provided, each Company and each Subsidiary relating to the Businesshowever, that (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitationA) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section such access shall be conducted in such manner as not to interfere unreasonably with the conduct operation of the business of PGE, PGH II nor any of their respective subsidiaries or of NW Natural or any of its subsidiaries, (B) neither PGE, PGH II or any of their respective subsidiaries nor NW Natural or any of its subsidiaries shall be required to take any action that would constitute a waiver of the attorney-client privilege and (C) neither PGE, PGH II nor any of their respective subsidiaries shall be required to supply Purchaser with any information that PGE, PGH II or any of their respective subsidiaries is under a legal obligation not to supply and neither NW Natural nor any of its subsidiaries shall be required to supply Seller with any information that NW Natural or any of its subsidiaries is under a legal obligation not to supply. During such period, Seller, on the Business. Notwithstanding one hand, and NW Natural, on the foregoingother hand, unless required by TUPE, Buyer shall not have access prior furnish promptly to the Closing Date to personnel records other (i) a copy of any Company each report, schedule and other document filed or received by it or any Subsidiary relating to individual performance of its subsidiaries with or evaluation recordsfrom the FERC, medical histories or other information which in Seller's good faith opinion is sensitive or the disclosure NRC, the Department of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after Justice, the Closing DateFederal Trade Commission, Seller will afford promptly to Buyer and its agents reasonable access to its books of accountthe SEC, financial and other records (including accountant's work papers)the OPUC, information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation WUTC or any other reasonable business purpose relating Governmental Authority with respect to the Business; provided that any transactions contemplated hereby and (ii) all information concerning themselves, their subsidiaries, directors and officers and such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation matters as may be reasonably requested by Buyer the other in timely obtaining the Debt Financings contemplated by the Commitment Lettersconnection with any filings, includingapplications or approvals required to be made or obtained from any Governmental Authority, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested Court or third party in connection with the Debt Financings, (C) making appropriate employees, accountants performance by such Party of its obligations under this Agreement. All documents and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access information furnished pursuant to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect this Section 7.1 shall be subject to the review Confidentiality Agreements; provided, however, that Seller shall be entitled to disclose any such documents and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries information to a potential Designated Transferee and its Representatives in connection with a proposed issuance of Securities to such potential Designated Transferee pursuant to Section 1.2 but such Designated Transferee or potential Designated Transferee and its Representatives shall keep such information confidential on the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyersame terms as are applicable to confidential information provided to Seller hereunder.
Appears in 1 contract
Samples: Stock Purchase Agreement (Northwest Natural Gas Co)
Access to Information. (a) From the date hereof until to the Closing DateClosing, Seller will subject to the Confidentiality Agreement and any applicable Law, Sellers shall (i) givepermit Purchaser and its Representatives to have reasonable access, during regular business hours and will cause each Company and each Subsidiary to giveupon reasonable advance notice, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, premises, facilities and books and records of Sellerthe Sellers, each Company the Companies and each Subsidiary their Subsidiaries and to those officers, directors, employees, agents, accountants and counsel of the Sellers, the Companies and their Subsidiaries who have any knowledge relating to the BusinessCompanies, any of their Subsidiaries or the Business and (ii) furnish, furnish to Purchaser and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives Representatives such additional financial and operating data and other information relating regarding the Companies, their Subsidiaries and the Business (or copies thereof) as Purchaser may from time to time reasonably request, in any case, to the Business as such Persons may reasonably request extent related to the transactions contemplated by this Agreement and (iii) instruct the employees, counsel Ancillary Agreements and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer solely in its investigation furtherance of the Businesstransactions contemplated hereby and thereby, including (without limitation) any Phase I environmental investigations relating but only to properties used in the Business. Any investigation pursuant extent that such access or furnishing of information does not unreasonably interfere with the businesses of Sellers or the Companies and, such information does not relate to this Section the Excluded Assets or Excluded Liabilities; provided that the foregoing shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer at Purchaser’s expense and shall not have access prior require (1) Sellers or any of their Affiliates to (w) permit any inspection, or to disclose any information, that would result in the disclosure of any competitively sensitive information of Sellers or of any of their Affiliates, (x) violate any obligations of Sellers or their Affiliates to any third party with respect to confidentiality, (y) violate any privacy or other Laws applicable to Sellers or any of their Affiliates or (z) disclose consolidated Tax Returns (other than excerpts thereof) or any Tax Returns or Tax-related work papers not solely or primarily related to the Closing Date Companies, (2) any disclosure by Sellers or any of their Affiliates that Sellers believe in good faith would reasonably be expected, as a result of such disclosure, to personnel records have the effect of causing the waiver of any Company privilege (including the attorney-client and work product privileges) (provided that the Sellers shall use commercially reasonable efforts to put in place an arrangement to permit disclosure of such books or records without risk of loss of such privilege), (3) Sellers or any Subsidiary relating of their Affiliates to individual performance disclose any information related to the Sale Process or Sellers’ or their respective representatives’ and advisors’ evaluation recordsthereof including projections, medical histories financial or other information which related thereto other than projections, financial or other information prepared in Seller's good faith opinion is sensitive the ordinary course of the Business without being primarily prepared for the Sale Process or the disclosure sale of which could subject the Women’s Health Business or (4) the auditors and accountants of any Company of Sellers or their Affiliates (including the Companies and their businesses) to make any Subsidiary work papers available to risk of liabilityany Person unless and until such Person has provided customary confidentiality, hold harmless or other agreements reasonably and customarily requested by such auditors or accountants.
(b) On and after the Closing Date, Seller 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 necessary All information provided or useful for Buyer obtained in connection with the transactions contemplated by this Agreement (including pursuant to subsection (a) above) shall be held in accordance with the Confidentiality Agreement. The terms of the Confidentiality Agreement shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate; provided that the Confidentiality Agreement shall terminate only in respect of the confidentiality obligations relating to that portion of the Confidential Information (as defined in the Confidentiality Agreement) relating to the Business. If this Agreement is, for any auditreason, investigationterminated prior to the Closing, dispute the Confidentiality Agreement shall continue in full force and effect in accordance with its terms.
(c) Following the Closing, subject to any applicable Law and contractual confidentiality obligations, each of the Sellers shall, and shall cause its Affiliates to, permit Purchaser and its Representatives and advisors (including attorneys and accountants) to have reasonable access (including to examine and make copies of, as applicable), during regular business hours and upon reasonable advance notice, at Purchaser’s expense, to (x) the officers and employees of the Sellers and their Affiliates and (y) any books and records, documents and other information in respect of the Business relating to periods prior to the Closing (collectively, “Information”) which shall not otherwise have been made available to Purchaser, the Companies or litigation or their Subsidiaries, in each case for any other reasonable business purpose relating to the Business, including in connection with (i) the preparation of Purchaser’s accounting records or with any audits, (ii) any Action or Proceeding relating to or referring to the Business or the Companies or their Subsidiaries in any manner, (iii) any regulatory filing or matter or (iv) any other bona fide legal or business purpose of Purchaser or its Affiliates; provided that any such access by Buyer Purchaser shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear reimburse Sellers promptly for all of the reasonable and necessary out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred by Sellers in connection with any such request; provided, further, that Sellers may redact or withhold any portion of any Information that does not relate to the foregoingBusiness or the Companies or their Subsidiaries prior to providing access thereto to Purchaser or its Representatives or advisors.
(cd) Following the Closing, subject to any applicable Law and contractual confidentiality obligations, Purchaser shall, and shall cause its Affiliates to, permit Sellers and their Representatives and advisors (including attorneys and accountants) to have reasonable access (including to examine and make copies of, as applicable), during regular business hours and upon reasonable advance notice, at Sellers’ expense, to any Transferred Books and Records for any reasonable purpose relating to the Companies agree to provide such cooperation as may be reasonably requested by Buyer businesses of Sellers or their Affiliates, including in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, connection with (Ai) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations Sellers’ or their Affiliates’ accounting records or with respect to the Debt Financingsany audits, (Bii) using reasonable efforts any Action or Proceeding made against either Seller relating to prepare and deliver such financial and statistical information relating or referring to the Business as may be reasonably requested or the Companies or their Subsidiaries in connection with the Debt Financingsany manner, (Ciii) making appropriate employees, accountants any regulatory filing or matter or (iv) any other bona fide legal or business purpose of Sellers or their Affiliates; provided that Sellers shall reimburse Purchaser promptly for all reasonable and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable necessary out-of-pocket costs and expenses incurred by Seller, the Companies or any Subsidiaries Purchaser in connection with any such request.
(e) At the foregoing Closing, Sellers shall transmit, and shall cause their Affiliates or the acquirer of the Women’s Health Business to transmit, to Purchaser (or the Companies) all Transferred Books and Records to the extent in the possession of Sellers and their Affiliates or the acquirer of the Women’s Health Business; provided that to the extent it is not possible to transmit all Transferred Books and Records at Closing, notwithstanding Sellers’ commercially reasonable efforts to do so, Sellers shall transmit, and shall cause their Affiliates or the acquirer of the Women’s Health Business to transmit, to Purchaser (or the Companies) all Transferred Books and Records to the extent in the possession of Sellers and their Affiliates or the acquirer of the Women’s Health Business that are material to the operation of the Business and shall transmit the remaining Transferred Books and Records as soon as practicable after Closing. During such period after Closing, Sellers shall provide copies of any Transferred Books and Records not yet transmitted to Purchaser (or the Companies) on an as-needed basis upon reasonable written request of Purchaser. (f) Notwithstanding the foregoing, Sellers and their Affiliates shall not be paid required to disclose any Information and Purchaser and its Affiliates shall not be required to disclose any Transferred Books and Records if (i) such party believes in good faith that doing so presents a significant risk, based on advice of outside counsel, of resulting in a loss of the ability to successfully assert a claim of Privilege or reimbursed promptly following demand therefor(ii) Sellers or any of their Affiliates, by Buyeron the one hand, and Purchaser and its Affiliates, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided that, in the case of clause (i) above, the parties hereto shall use commercially reasonable efforts to put in place an arrangement to permit disclosure of such information without risk of loss of such privilege; provided, further, that Sellers and their Affiliates shall not be required to provide Purchaser or its Representatives with any information related to the Sale Process or Sellers’ or their Representatives’ evaluation thereof, including projections, financial or other information related thereto other than projections, financial or other information prepared in the ordinary course of the Business without being primarily prepared for the Sale Process.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) giveearlier of the Expiry Time and the time this Agreement is terminated, and will cause each subject to the existing confidentiality agreement between the Company and each PPC dated October 4, 2004 (the "CONFIDENTIALITY AGREEMENT"), the Company shall (and shall cause its Subsidiary to giveto) afford the Offeror's officers, Buyeremployees, its counsel, financial advisors, auditors accountants and other authorized representatives reasonable and advisors of PPC or the Offeror ("REPRESENTATIVES") access to information, confidential or otherwise, with respect to the officesCompany and its Subsidiary and their respective businesses, assets and properties, books including books, contracts and records of Seller, each Company as well as access to management personnel and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary subject to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted in such manner as access not to interfere unreasonably interfering with the ordinary conduct of the business of Seller the Company and its Subsidiary. PPC, the Offeror and their Representatives will not contact any Agency (other than Agencies with registries or information available by request from members of the Business. Notwithstanding public), any employees of the foregoingCompany or its Subsidiary, unless required by TUPEany supplier of the Company or its Subsidiary, Buyer or any third party who is a party to any agreement, arrangement or understanding under which the Company or its Subsidiary (or any of their assets) is bound or affected, without the prior written consent of the Company, which shall not have access prior be unreasonably withheld, and the Company shall (and shall cause its Subsidiary to) furnish promptly to the Closing Date to Offeror all information concerning its business, assets, properties and personnel records of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or as the disclosure of which could subject any Company or any Subsidiary to risk of liabilityOfferor may reasonably request.
(b) On and after Notwithstanding the Closing Dateforegoing, Seller will afford promptly except as expressly provided for herein, the Company shall not be obligated 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 make available to the extent necessary Offeror any of the Company's management or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose Board of Directors' materials relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct assessment or evaluation of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses transactions contemplated hereby or any alternative transaction (including attorneys' feesany Acquisition Proposal proposed by any other person) nor any information supplied by any of its officers, but excluding reimbursement for general overheaddirectors, salaries and employee benefits) actually and reasonably incurred employees, financial advisors, legal advisors, auditors, representatives, agents or other advisors in connection with therewith or any confidentiality agreement made between the foregoingCompany and any other person in respect of any alternative transaction.
(c) Sellers and Without limiting the Companies agree generality of the provisions of the Confidentiality Agreement, the parties acknowledge that all information provided under section 3.4(a), or otherwise pursuant to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested this Agreement or in connection with the Debt Financingstransactions contemplated hereby, (C) making appropriate employeesis subject to the Confidentiality Agreement, accountants which shall remain in full force and advisors effect notwithstanding any other provision of this Agreement or any termination of this Agreement. If any provision of this Agreement conflicts or is inconsistent with any provision of the Companies available Confidentiality Agreement, the provisions of this Agreement will supersede those of the Confidentiality Agreement but only to the extent of the conflict or inconsistency and all other provisions of the Confidentiality Agreement will remain in full force and effect.
(d) Nothing in this section 3.4 shall require the Company or its Subsidiary to disclose information subject to a written confidentiality agreement with a third party or supplier specific or competitively sensitive information. For greater certainty, until the date on which the Offeror takes up and pays for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investorsShares under the Offer, (D) providing timely access to diligence materials and appropriate personnel exchange of supplier specific and competitively sensitive information ("CONFIDENTIAL DATA") as between the parties shall be limited to allow lenders what is reasonably necessary for the purposes of securing all necessary regulatory approvals, the preparation and settlement of definitive documents and the consummation of the Offer and shall be limited such that the dissemination of Confidential Data shall be confined to the representatives of the parties and their counsel who have a need to know such information for such purposes and who agree to respect such confidentiality in their dealings with Confidential Data. In particular, with reference to access to and the sharing of Confidential Data of one party with representatives to complete all reasonably of the other party for purposes of preparing any filings or submissions in respect of any required diligence and (E) providing reasonable assistance regulatory approvals, the general principle which shall be applied is that such information shall be made available to, exchanged or shared with respect counsel to the review and granting of security interests in collateral for parties rather than the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies parties or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyertheir representatives.
Appears in 1 contract
Access to Information. (a) From the date hereof of this Agreement until the Closing Date, Seller will (i) giveshall, and will shall cause each Company its Affiliates to, give Buyer and each Subsidiary to giveits authorized Representatives, Buyerupon reasonable advance written notice and during regular business hours, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the officesbooks, propertiesrecords, books appropriate personnel and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors officers and other authorized representatives such financial facilities 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation properties of the BusinessAcquired Companies; provided, including (without limitation) that any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section such access shall be conducted at Buyer’s expense, in accordance with applicable Law (including any applicable Law relating to antitrust, competition, employment or privacy issues or arising out of or with respect to any Contagion Event), under the supervision of Seller’s or its Affiliates’ personnel and in such a manner as to maintain confidentiality and not to unreasonably interfere unreasonably with the conduct of the business normal operations of Seller or and its Affiliates (including the BusinessAcquired Companies). Notwithstanding In addition to the foregoing, unless required by TUPEwithin ten (10) Business Days following the end of each calendar month, Seller shall deliver to Buyer shall not have access prior a report setting forth the holdings of the investment portfolio of the Acquired Companies as of the end of such calendar month and the performance of the investment portfolio during such calendar month, including an updated “watch list” with respect to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityimpaired and potentially impaired Investment Assets.
(b) On and after the Closing Date, Seller 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 Notwithstanding anything to the extent necessary or useful for Buyer contrary contained in connection with any audit, investigation, dispute or litigation this Agreement or any other reasonable business purpose relating agreement between Buyer and Seller executed on or prior to the Business; provided that any such access by date hereof, Seller shall have no obligation to make available to Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' feesor its Representatives, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree or to provide Buyer or its Representatives with access to or copies of (i) except as provided in Section 9.01(j), any personnel file, medical file or related records of any Business Employee, (ii) except as provided in Section 10.07, any Tax Return filed by Seller or any of its Affiliates (other than the Acquired Companies) or predecessors, or any related material or (iii) any other information if Seller determines, in its reasonable judgment, that making such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, information available would (A) assisting in jeopardize any attorney-client privilege, the preparation work product immunity, any other legal privilege or immunity, or expose such party to Liability for disclosure of offering circulars, confidential sensitive or personal information memoranda and rating agency presentations with respect to the Debt Financings, or (B) using contravene any applicable Law, Governmental Order, any fiduciary duty or a contract or obligation of confidentiality owing to a non-Affiliated Person, it being understood that Seller shall (x) cooperate with any requests for, and use its commercially reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financingsobtain, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence any waivers and (Ey) providing use its commercially reasonable assistance with respect efforts to the review and granting make other arrangements (including redacting information or entering into joint defense agreements), in each case, that would enable any otherwise required disclosure to Buyer to occur without so jeopardizing any such privilege or immunity or contravening such applicable Law, Governmental Order, fiduciary duty or obligation of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerconfidentiality.
Appears in 1 contract
Samples: Stock Purchase Agreement (American Financial Group Inc)
Access to Information. (a) From the date hereof until the Closing DateClosing, Seller will subject to the provision of Section 5.9, the Stockholders shall, and shall cause the Company and the Company’s Subsidiaries to, (a) provide Purchaser and its Representatives with reasonable access to and right to inspect during normal business hours, upon reasonable prior notice, to (i) giveXxxx (President), Xxxx Xxxxxxx (CFO), and will cause each Xxxxxx Xxxxxxx (Vice President) and, upon prior consent of Xxxx (such consent not to be unreasonably withheld, conditioned or delayed, provided that Xxxx or her designee can participate therein), such other personnel, officers, and employees assets, premises, contracts, documents and properties of the Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors Subsidiaries and the Books and Records and other authorized representatives reasonable access to the offices, properties, books information and records of Seller, each Company and each Subsidiary data relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnishits Subsidiaries; (b) furnish Purchaser and its Representatives with such financial, to Buyer, its counsel, financial advisors, auditors operating and other authorized representatives such financial and operating data and other information relating related to the Business Company and its Subsidiaries as such Persons Purchaser or any of its Representatives may reasonably request request; and (iiic) instruct the employees, counsel Representatives of the Stockholders and financial advisors of Seller or any the Company or any Subsidiary and its Subsidiaries to cooperate with Buyer Purchaser in its investigation of the Businessthereof, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any provided, that such investigation pursuant to this Section shall be conducted in such a manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Sellerthe Company and its Subsidiaries. Buyer The Stockholders shall bear cause the Company to furnish Purchaser and its Representatives with all such information and data (including copies of Contracts, Company IP Agreements, Plans and other Books and Records) concerning the Company and its Subsidiaries and operations of the out-of-pocket costs Company and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and its Subsidiaries as Purchaser or any of such Representatives reasonably incurred may request in connection with such investigation; provided, however, that (i) the foregoingauditors and outside accountants of the Company and its Subsidiaries shall not be obligated to make work papers available unless Purchaser has signed a customary agreement relating to access to such work papers in form and substance reasonably acceptable to such auditors or accountants, as applicable, and (ii) the Stockholders shall not be obligated to make (or cause to be made) any information available that would, in the reasonable judgment of the Stockholders, with advice from legal counsel, (x) violate or jeopardize any applicable attorney client or other similar legal privilege or (y) violate any applicable Law or binding agreement entered into prior to the date of this Agreement that is listed on Section 5.2 of the Stockholders Disclosure Schedule. No investigation by Purchaser or other information received by Purchaser shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Stockholders in this Agreement. Purchaser shall not use, and shall not permit any of its Affiliates and Representatives to use, any such information in any manner or for any other purpose other than solely in connection with evaluating the Company and the transactions contemplated by this Agreement. All such information shall be kept confidential and limit its use in accordance with the terms of the Confidentiality Agreement, and Purchaser hereby agrees to be bound (and to cause its Subsidiaries to abide by) by the terms of the Confidentiality Agreement as if it was a party thereto. Notwithstanding the terms of the Confidentiality Agreement, in the event of a termination of this Agreement for any reason, the terms of this Section 5.2(a) and the Confidentiality Agreement will survive such termination for a period of five (5) years following such termination.
(cb) Sellers Each of the Stockholders and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using Purchaser shall use commercially reasonable efforts to prepare and deliver such financial and statistical information relating provide promptly to the Business other Party all non-privileged information as such other Party may be reasonably requested request in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors such other Party’s review of the Companies available for due diligence meetings and for participation Closing Date Balance Sheet, the Closing Date Calculations, the Adjustment Notice of Disagreement, the Loss Development Statement, the Loss Development Amount or the Loss Development Notice of Disagreement, as the case may be, including all work papers of the accountants who audited, compiled or reviewed such documents (subject to, in meetings with rating agencies and prospective lenders and investorsthe case of third-party accountants, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect the relevant party entering into a customary release agreement on terms acceptable to the review accountant), and granting shall otherwise cooperate in good faith with such other Party to arrive at a final resolution of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by SellerClosing Date Balance Sheet, the Companies or any Subsidiaries in connection with Closing Date Calculations, the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerLoss Development Statement and the Loss Development Amount.
Appears in 1 contract
Samples: Stock Purchase Agreement (Standard Diversified Inc.)
Access to Information. (a) From the date hereof until to --------------------- the Closing DateEffective Time, Seller will (i) givethe Company shall, and will shall cause each Company the Subsidiaries and each Subsidiary to givethe officers, Buyerdirectors, its counsel, financial advisorsemployees, auditors and other authorized representatives agents of the Company and the Subsidiaries to, afford the officers, employees and agents of Parent and Purchaser and persons providing or committing to provide Parent or Purchaser with financing for the Transactions complete access at all reasonable access times to the officers, employees, agents, properties, offices, propertiesplants and other facilities, books and records of Seller, each the Company and each Subsidiary relating to the Business, (ii) furnishSubsidiary, and will cause each Company shall furnish Parent and each Subsidiary Purchaser and persons providing or committing to furnishprovide Parent or Purchaser with financing for the Transactions with all financial, to Buyer, its counsel, financial advisors, auditors operating and other authorized representatives such financial and operating data and other information relating to the Business as such Persons Parent or Purchaser, through its officers, employees or agents, may reasonably request and request.
(iiib) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any No investigation pursuant to this Section 5.03 shall be conducted affect any representation or warranty in such manner as not this Agreement of any party hereto or any condition to interfere unreasonably with the conduct obligations of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingparties hereto.
(c) Sellers From and after the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersdate hereof, includingeach party hereto shall, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable shall use its best efforts to prepare cause its affiliates and deliver its and their respective agents to, keep secret and hold in strictest confidence any and all documents and information identified by any other party as confidential and furnished to such financial and statistical information relating to first party (whether before or after the Business as may be reasonably requested date hereof) in connection with the Debt Financingstransactions contemplated hereunder, other than the following: (Ci) making appropriate employeesinformation that has become generally available to the public other than as a result of a disclosure by such party, accountants its affiliates or its agents; (ii) information that has become available to such party or an agent of such party on a nonconfidential basis from a third party having, to the knowledge of such party (after reasonable inquiry), no obligation of confidentiality or other legal or fiduciary obligation of secrecy to a party to this Agreement and advisors that has not itself, to the knowledge of such party (after reasonable inquiry), received such information directly or indirectly in breach of any such obligation; and (iii) information that is required to be disclosed by applicable law or pursuant to any listing agreement with, or the rules or regulations of, any securities exchange on which securities of such party or any such affiliate are listed or traded. If any party hereto is required to disclose any such confidential information pursuant to applicable law, such party shall promptly notify each other party in writing, which notification shall include the nature of the Companies available legal requirement and the extent of the required disclosure, and shall cooperate with each other party to preserve the confidentiality of such information consistent with applicable law. In the event the transactions contemplated by this Agreement are not consummated, each party hereto shall return all materials in its possession containing confidential information belonging to another party and shall not use any such information for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerpurpose whatsoever.
Appears in 1 contract
Access to Information. Subject to Section 6.3.2, from the date of this Agreement to the Effective Time or the earlier termination of this Agreement pursuant to Section 8.1, the Company shall, shall cause its Subsidiaries to, and shall instruct each of its and its Subsidiaries' directors, officers, employees, accountants, consultants, legal counsel, advisors, and agents and other representatives (collectively, "Company Representatives") to: (a) From provide to Parent and Merger Sub and each of their respective officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives (collectively, "Parent Representatives," and, each, together with each of the date hereof until Company Representatives, a "Representative") access at reasonable times, upon reasonable prior notice to the Closing DateCompany or to the Company Representatives, Seller will (i) giveas applicable, to the properties, offices and other facilities of the Company and its Subsidiaries and the books and records thereof, and will (b) furnish, or cause each Company and each Subsidiary to givebe furnished, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to such reasonably available information concerning the officesbusiness, properties, books Contracts, assets, Liabilities, personnel and records other aspects of Sellerthe Company as Parent, each Merger Sub or the Parent Representatives may reasonably request. Any such access and availability shall include access for Parent Representatives to conduct any environmental site assessments (including sampling) or inspection in respect of environmental matters at the Company Owned Properties and the Company Leased Premises, physical inspections of the assets of the Company and each Subsidiary relating to the Business, (ii) furnishits Subsidiaries, and will cause each contact with the customers, vendors, suppliers and creditors of the Company and its Subsidiaries, in 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 Business case as such Persons Parent Representatives may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller request. No information or knowledge obtained in any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 6.3.1 shall affect or be conducted deemed to modify any representation or warranty contained in such manner as not this Agreement or the conditions to interfere unreasonably with the conduct obligations of the business of Seller or Parties to consummate the BusinessMerger. Notwithstanding the foregoing, unless required by TUPE, Buyer the Company shall not have be required to provide access prior to or disclose information where such access or disclosure would contravene any Law, binding Contract to which the Company is party or any privacy policy applicable to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information which in SellerCompany's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liabilitycustomer information.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From Between the date hereof until of this Agreement and the Closing DateClosing, Seller will (i) givewill, and will cause each Company its subsidiaries to, afford to Buyer and each Subsidiary to giveits officers, Buyeremployees, its counsel, financial advisorsadvisers and representatives, auditors and other authorized representatives reasonable as Buyer may from time to time reasonably request, full access to (i) all of the officessites, properties, books and records of Seller, each Company Seller and each Subsidiary relating to the Business, its subsidiaries and (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such additional financial and operating data and other information relating about Seller and any of its subsidiaries, including without limitation, full access to Seller's and each of its subsidiaries' employees, customers, vendors, suppliers and creditors for due diligence inquiry. Seller will cooperate with Buyer, its representatives, auditors and counsel in the preparation of any documents or other material which may be required in connection with this Agreement. Buyer may, prior to the Closing, through its own representatives, make such investigations of the properties and plant included in the Purchased Assets and the operations of the Business and such investigations of the financial condition of Seller for such purposes as it deems necessary or advisable in connection with the transactions contemplated hereby, including but not limited to enabling it to familiarize itself and any prospective sources of financing with such Persons may reasonably request and (iii) instruct the employeesproperties, counsel plants, operations and financial advisors of Seller or any Company or any Subsidiary to cooperate conditions; provided that such investigations do not unreasonably interfere with Buyer in its investigation the normal business operations of the Business, including (without limitation) systems. No information or knowledge obtained in any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 5.1 shall affect or be conducted deemed to modify any representation or warranty contained in such manner as not this Agreement or the conditions to interfere unreasonably with the conduct obligations of the business of Seller or parties to consummate the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitytransactions contemplated hereby.
(b) On Buyer recognizes and after acknowledges that it had in the Closing Datepast, Seller will afford promptly to Buyer currently has, and its agents reasonable in the future may possibly have, access to its books certain confidential information of accountSeller that are valuable, financial special and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to unique assets of the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' feesagrees that, but excluding reimbursement unless there is a Closing, it will not use or disclose confidential information with respect to Seller to any person, firm, corporation, association or other entity for general overhead, salaries and employee benefits) actually and reasonably incurred any purpose or reason whatsoever except in connection with the foregoing.
(c) Sellers and completion of the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings transactions contemplated by this Agreement, unless (i) such information becomes known to the Commitment Letters, including, without limitationpublic generally through no fault of Buyer, (Aii) assisting in disclosure is required by law or the preparation order of offering circularsany governmental authority under color of law, confidential information memoranda and rating agency presentations with respect to or (iii) the Debt Financings, (B) using reasonable efforts to prepare and deliver disclosing party reasonably believes that such financial and statistical information relating to the Business as may be reasonably requested disclosure is required in connection with the Debt Financingsdefense of a lawsuit against the disclosing party, provided, that prior to disclosing any information pursuant to clause (i), (Cii) making appropriate employeesor (iii) above, accountants Buyer shall give prior written notice thereof to Seller and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection provide Seller with the foregoing opportunity to contest such disclosure and shall be paid or reimbursed promptly following demand therefor, by Buyercooperate with efforts to prevent such disclosure.
Appears in 1 contract
Access to Information. (a) From Until the date hereof until the Closing DateClosing, Seller Tulsa and Holdings will (i) givefurnish, and will cause each the Company to furnish, the Acquiror and each Subsidiary to giveits employees, Buyerofficers, its counselaccountants, financial advisorsattorneys, auditors agents, investment bankers and other authorized representatives reasonable with all financial, operating and other data and information concerning the assets, commitments and properties of the Company as the Acquiror shall from time to time reasonably request and will afford the Acquiror and its employees, officers, accountants, attorneys, agents, investment bankers and other authorized representatives access to the offices, properties, books books, records, contracts and records documents of Seller, each the Company and each Subsidiary relating will be given the opportunity to the Business, (ii) furnishask questions of, and receive answers from, representatives of the Company. As part of its investigation, the Acquiror shall have the right to conduct environmental assessments of the Company's properties, however, any soil and groundwater sampling by Acquiror may only be conducted with the written consent of Tulsa in its sole discretion, subject to Section 5.15 hereof. No investigations by the Acquiror or its employees, representatives or agents shall reduce or otherwise affect the obligation or liability of Tulsa or Holdings with respect to any representations, warranties, covenants or agreements made herein or in any exhibit, schedule or other certificate, instrument, agreement or document, including the Disclosure Schedule, executed and delivered in connection with this Agreement. Tulsa and Holdings will cause each Company cooperate with the Acquiror and each Subsidiary to furnishits employees, to Buyerofficers, its counselaccountants, financial advisorsattorneys, auditors agents 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall preparation of any documents or other materials that may be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityGovernmental Entity.
(b) On Each party hereto agrees to hold in confidence all, and after not to disclose to others for any reason whatsoever any, non-public information received by it or its representatives from the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred party hereto in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings transactions contemplated by the Commitment Lettersthis Agreement except (i) as required by law; (ii) for disclosure to officers, includingdirectors, without limitation, (A) assisting in the preparation employees and representatives of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business party as may be reasonably requested necessary in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors transactions contemplated hereby or as necessary to the operation of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence such party's business; and (Eiii) providing reasonable assistance with respect for information that becomes publicly available other than through such party. If the transactions contemplated by this Agreement are not consummated, each party hereto (i) will return to the review other party hereto all non-public documents and granting of security interests in collateral other material obtained from such other party, and all copies, summaries and extracts thereof, or certify to such other party that such information has been destroyed and (ii) agrees not to use for its own benefit or for the Debt Financings. All reasonable outbenefit of any other Person any non-of-pocket expenses incurred public information received by Seller, it or its representatives or Affiliates from the Companies or any Subsidiaries other party in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, transactions contemplated by Buyerthis Agreement.
Appears in 1 contract
Samples: Acquisition Agreement (Weatherford International Inc /New/)
Access to Information. (a) From the date hereof until the Closing Date, Seller will The Company shall (i) give, and will shall cause each Company and each Subsidiary of its Subsidiaries to) afford to givethe Buyer's officers, Buyeremployees, its counselaccountants, financial advisors, auditors counsel and other authorized representatives representatives, reasonable access access, upon reasonable advance notice, during normal business hours during the period prior to the officesEffective Time, to all its properties, books, contracts, commitments, personnel and records and, during such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to the Buyer (a) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal or state securities laws and (b) all other information concerning its business, properties, books assets and records of Seller, each Company and each Subsidiary relating to personnel as the Business, (ii) furnish, and will cause each 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 Business as such Persons Buyer may reasonably request and (iii) instruct request. The Buyer will hold any such information which is nonpublic in confidence in accordance with the employees, counsel and financial advisors of Seller Confidentiality Agreement. No information or knowledge obtained in any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section or otherwise shall affect or be conducted deemed to modify any representation or warranty contained in such manner as not this Agreement or the conditions to interfere unreasonably with the conduct obligations of the business of Seller or parties to consummate the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityMerger.
(b) On In the event that the Company reasonably believes that the Buyer or the Transitory Subsidiary has materially breached one or more of their respective representations or -40- 48 warranties under this Agreement, the Buyer shall (and after shall cause each of its Subsidiaries to) afford the Closing DateCompany's officers, Seller will afford promptly to Buyer and its agents reasonable access to its books of accountemployees, financial accountants, counsel and other records (including accountant's work papers)representatives reasonable access, informationupon reasonable advance notice, employees during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, commitments, personnel and auditors records; provided that such access shall be afforded solely to the extent that such access is necessary to determine the existence of such a breach of one or useful for more representations or warranties of the Buyer or the Transitory Subsidiary under this Agreement. The Company will hold any such information which is nonpublic in connection confidence in accordance with the Confidentiality Agreement. No information or knowledge obtained in any audit, investigation, dispute investigation pursuant to this Section or litigation otherwise shall affect or be deemed to modify any other reasonable business purpose relating representation or warranty contained in this Agreement or the conditions to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct obligations of the business of Seller. Buyer shall bear all of parties to consummate the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingMerger.
(c) Sellers and Notwithstanding anything to the Companies agree contrary in this Section 6.4(c), neither party hereto nor any of their Subsidiaries shall be required to provide access to or to disclose information where such cooperation as access or disclosure would contravene any law, rule, regulation, order, judgment or decree, or, in the event of any litigation or threatened litigation between the parties over the terms of this Agreement, where such access to information may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect adverse to the Debt Financings, (B) using reasonable efforts to prepare and deliver interests of such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerparty.
Appears in 1 contract
Samples: Merger Agreement (Perkinelmer Inc)
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) giveDuring the Pre-Closing Period, upon reasonable prior notice, Sellers shall, and will shall cause each the Company and each Subsidiary to giveto, Buyerafford the Representatives of Buyer reasonable access, its counselduring normal business hours, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Sellerkey personnel, independent accountants, legal counsel, offices and other facilities and properties of the Acquired Entities, in each Company and each Subsidiary relating case, to the Businessextent such properties, (ii) furnishbooks and records relate to, and will cause each Company are in the possession of, the Acquired Entities, and each Subsidiary furnish to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives the Representatives of Buyer such additional 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of regarding the business of Seller the Company Group as Buyer or its Representatives may from time to time reasonably request for purposes of consummating the Businesstransactions and preparing to operate the business of the Company Group following the Closing, in each case at the sole cost and expense of Buyer. Notwithstanding BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLERS, THEIR AFFILIATES (INCLUDING, PRIOR TO THE CLOSING, THE ACQUIRED ENTITIES) AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, EQUITYHOLDERS, COUNSEL, ACCOUNTANTS, FINANCIAL ADVISORS, ENGINEERS, CONSULTANTS AND OTHER ADVISORS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL PROCEEDINGS, LIABILITIES AND LOSSES ARISING OUT OF, RESULTING FROM, OR CAUSED BY, DIRECTLY OR INDIRECTLY, THE ACTS OR OMISSIONS OF BUYER, ITS AFFILIATES, OR ANY PERSON ACTING ON EITHER BUYER’S OR ITS AFFILIATES’ BEHALF IN CONNECTION WITH ANY DUE DILIGENCE CONDUCTED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY SITE VISITS; PROVIDED THAT THE FOREGOING INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY SUCH LOSSES TO THE EXTENT CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF ANY OF THE ACQUIRED ENTITIES OR THEIR RESPECTIVE AFFILIATES AND REPRESENTATIVES. The foregoing indemnification and hold harmless obligation shall survive the foregoing, unless required by TUPE, Closing or termination of this Agreement. Buyer shall not have access prior use its commercially reasonable efforts to comply fully with all rules, regulations, policies and instructions, including all health and safety policies and procedures, issued by any member of the Company Group or any third-party operator and provided to Buyer regarding the Buyer’s actions while upon, entering or leaving any property, including any insurance requirements that any member of the Company Group reasonably may impose on contractors authorized to perform work on any property owned or operated by any member of the Company Group.
(ii) Notwithstanding anything in this Agreement to the Closing Date contrary:
(A) in no event shall Sellers, the Company or their respective Affiliates be obligated to personnel records provide any (1) access or information in violation of any Company applicable Law, (2) information with respect to bids, the identity of any bidder, confidentiality or non-disclosure agreements, letters of intent, expressions of interest or other proposals received in connection with transactions comparable to those contemplated by this Agreement or any Subsidiary information or analysis relating to individual performance or evaluation recordsany such communications, medical histories or other (3) information which in Seller's good faith opinion is sensitive or the disclosure of which could subject reasonably be expected to jeopardize any Company applicable privilege (including the attorney-client privilege) available to any of Sellers, any Acquired Entity or any Subsidiary of their respective Affiliates relating to risk such information, (4) information the disclosure of liability.
which would cause Sellers, any Acquired Entity or any of their respective Affiliates to breach a confidentiality obligation to which it is bound or (b5) On and after any Tax Return of Sellers or their respective Affiliates (other than the Closing DateAcquired Entities); provided that, in event the restrictions in the foregoing clauses (1), (3) or (4) apply, Seller will afford promptly Representative (x) shall provide, and shall cause the Company to provide, Buyer and its agents reasonable access with a reasonably detailed description of the information not so provided pursuant to its books of account, financial and other records (including accountant's work papersthis Section 7.1(c)(ii)(A), informationand (y) shall use commercially reasonable efforts to, employees and auditors shall cause the Company to use commercially reasonable efforts to, cooperate in good faith to implement alternative disclosure arrangements to enable Buyer to verify compliance with this Section 7.1(c)(ii)(A) by Sellers and the Company solely to the extent necessary such actions by Seller Representative and the Company in preceding clauses (x) and (y) would not be reasonably expected to result in the violation of such Law or useful for Buyer in connection with any audit, investigation, dispute confidentiality obligation or litigation or any other reasonable business purpose relating to jeopardizing such privilege;
(B) the Business; provided that any such access investigation contemplated by Buyer Section 7.1(c)(i) shall not unreasonably interfere with the conduct any of the business businesses, personnel or operations of Seller. Buyer shall bear all any of Sellers, any member of the out-of-pocket costs Acquired Entities or any of their respective Affiliates, and expenses shall not include any Phase II environmental site assessments or any invasive or intrusive investigations or other testing, analysis or sampling (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, environmental matters);
(C) making appropriate employeesthe auditors and accountants of any of Sellers, accountants any Acquired Entity or any of their respective Affiliates shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and advisors of the Companies available for due diligence meetings accountants’ normal disclosure procedures and for participation then only after such Person has signed a customary agreement relating to such access to work papers in meetings with rating agencies form and prospective lenders and investors, substance reasonably acceptable to such auditors or accountants; and
(D) providing timely access to diligence materials and appropriate personnel to allow lenders and if so requested by Sellers on advice of outside counsel, Buyer shall enter into a customary joint defense agreement or common interest agreement with Sellers, the Acquired Entities or any of their representatives to complete all reasonably required diligence and (E) providing reasonable assistance respective Affiliates with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Sellerany information provided to Buyer, the Companies or any Subsidiaries in connection with the foregoing shall be paid to which Buyer gains access, pursuant to this Section 7.1(c)(ii)(D) or reimbursed promptly following demand therefor, by Buyerotherwise.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing DateSellers shall cause Company to provide to Buyer's officers, Seller will (i) giveemployees, and will cause each Company and each Subsidiary to giveaccountants, Buyer, its counsel, financial advisors, auditors counsel and other authorized representatives reasonable full and complete access during normal business hours throughout the period prior to the officesClosing or the date of termination of this Agreement, to its and its Subsidiaries' plants, properties, contracts, commitments, books and records of Seller(including but not limited to Tax Returns) and any report, each Company and each Subsidiary relating schedule or other document filed or received by it during such period pursuant to the Business, (ii) furnish, requirements of federal or state securities laws and will shall use its reasonable best efforts to cause each Company and each Subsidiary its representatives to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives furnish promptly such additional financial and operating data and other information relating as to its and its Subsidiaries respective businesses and properties, and to provide Buyer promptly with copies of any documents described herein, all as Buyer or its duly authorized representatives may from time to time reasonably request; provided, however, that nothing herein shall require the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary of its respective Subsidiaries to cooperate with disclose any information to Buyer if such disclosure (i) would cause significant competitive harm to such disclosing party or its affiliates if the transactions contemplated by this Agreement are not consummated, or (ii) would be in its investigation violation of the Business, including (without limitation) applicable laws or regulations of any Phase I environmental investigations relating to properties used in the Business. 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 Governmental Entity or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records provisions of any confidentiality agreement to which either the Company or any Subsidiary relating of its Subsidiaries or Buyer is a party. At closing, Sellers will disclose to individual performance or evaluation recordsBuyer the identity of all parties who entered into Confidentiality Agreements with the Company. Unless otherwise required by law and until the Closing, medical histories or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that representatives will hold any such access by Buyer shall not unreasonably interfere information which is nonpublic in confidence in accordance with the conduct provisions of the business Confidentiality Agreement between the Company and Buyer, dated as of Seller. Buyer shall bear all of October 3, 1997 (the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing"Confidentiality Agreement").
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing Date, Seller will the Partnership and the General Partner shall each, (i) give, and will cause each Company and each Subsidiary to give, Buyer, make its counsel, financial advisors, auditors and other authorized representatives reasonable access management personnel reasonably available to the offices, properties, books Parent and records of Seller, each Company NRP and each Subsidiary relating to the Businesstheir respective Representatives, (ii) furnishsubject to and in compliance with any obligations of confidentiality or non-disclosure provided by applicable Law or contained in any Contracts to which the Partnership or the General Partner is a party or by which it is bound (which restrictions on disclosure, the Partnership and General Partner will use commercially reasonable efforts to obtain waivers therefrom), provide the Parent and NRP and their respective accountants, employees, attorneys and other Representatives reasonable access to, and will cause each Company permit such Persons to review, during normal business hours and each Subsidiary to furnish, to Buyerupon reasonable prior written request, its counselproperties, financial advisorsbooks, auditors Contracts, accounts, records and other authorized representatives such financial and operating data and other information relating to files, including for the Business as such Persons may reasonably request purpose of performing an Environmental Assessment and (iii) instruct provide such other information to the employeesParent and NRP and their respective Representatives as they may reasonably request, counsel in each case, which is (a) reasonably necessary to assist the Parent and financial advisors of Seller or any Company or any Subsidiary to cooperate NRP with Buyer integration and transition planning in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably connection with the conduct of the business of Seller or the Businesstransactions contemplated hereby and (b) not inconsistent with applicable Law. Notwithstanding the foregoing, unless required the Parent and NRP acknowledge that none of the Holders, the General Partner, the Partnership nor their respective Subsidiaries or Affiliates shall be obligated to provide to the Parent or NRP (i) any information relating to any offers or indications of interest received by TUPEthe Holders, Buyer the Partnership or their respective Affiliates or representatives from any Person other than the Parent to acquire the General Partner, the Partnership, or any of their respective Equity Interests, properties or assets or any communications between the Holders, the General Partner, the Partnership or their respective Affiliates or representatives on the one hand and any such other Person on the other hand relating to such offers or indications of interest or the transactions contemplated thereby (it being understood that the Holders may retain all such documents, information and communications, which shall not have access be the sole property of the Holders at all times prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents reasonable access to its books of account, financial and other records (including accountant's work papersClosing), information(ii) any work papers or similar materials prepared by the independent public accountants of the Partnership, employees and auditors except to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies accountants agree to provide access to such cooperation work papers or similar materials upon such terms and conditions as may shall be reasonably requested determined by Buyer such accountants in timely obtaining their sole discretion (and the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda Partnership and rating agency presentations with respect to the Debt Financings, (B) using General Partner will use commercially reasonable efforts to prepare obtain such agreements), and deliver such financial and statistical (iii) any documents or information relating to that are protected by the Business as may be attorney-client privilege or work product doctrine protections if the General Partner or the Partnership reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) determines that providing timely copies or access to diligence materials such documents or information could give rise to a possible waiver of such privilege protections after considering the parties’ arrangements to preserve applicable privileges and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerprotections.
Appears in 1 contract
Access to Information. (a) a From the date hereof until the Closing Date, Seller will upon reasonable notice to Stockholder's representatives identified in the immediately following sentence, the Stockholder shall, and shall cause each of the Company and the Subsidiaries and each of their respective officers, directors, employees, auditors and agents to, (i) giveafford the officers, employees, authorized agents and will cause each Company and each Subsidiary to giverepresentatives of the Buyer reasonable access, Buyerduring normal business hours, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each the Company and each Subsidiary relating to the Businessits Subsidiaries, and (ii) furnishfurnish to the officers, employees and will cause each Company authorized agents and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives of the Buyer such updated financial and operating data and other information relating regarding the Company and the Subsidiaries as the Buyer may from time to the Business as time reasonably request; PROVIDED, HOWEVER, that (A) such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct any of the business of Seller. Buyer shall bear all businesses or operations of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers Company and the Companies agree Subsidiaries or detract from the ability of the Company's and the Subsidiary's employees to provide such cooperation perform their jobs and maintain the Properties as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersthey currently are being maintained, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts all requests by the Buyer for access or information pursuant to prepare this SECTION 6.07 shall be submitted or directed exclusively to an individual or individuals to be designated by the Stockholder. Stockholder designates Xxxx Xxxxxx of Xxxxxxx Xxxxx & Co. and deliver Xxxxxxx Xxxxx of Xxxx and Xxxx LLP as its representatives for the purpose of coordinating the response to all such financial and statistical information relating requests by Buyer. Buyer acknowledges that it has been provided access to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors each of the Companies available for due diligence meetings Properties and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access has had the ability to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance conduct such investigations with respect thereto as Buyer has deemed reasonable and prudent to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerpermit it to enter into this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement (KSL Recreation Group Inc)
Access to Information. (a) From the date hereof of this Agreement until the Closing Dateearlier of the Effective Time or the termination of this Agreement, Seller will upon reasonable notice and subject to applicable Laws relating to the exchange of information, NCC and United shall, and shall cause each of their respective Subsidiaries to, afford to the officers, employees, accountants, counsel and other representatives of the other, access to all its properties, books, contracts, commitments and records and, during such period, each of NCC and United shall, and shall cause each of their respective Subsidiaries to, make available to the other (i) givea copy of each report, and will cause each Company and each Subsidiary to giveschedule, Buyer, its counsel, financial advisors, auditors registration statement and other authorized representatives reasonable access document filed or received by it during such period pursuant to the officesrequirements of the Securities Laws or federal or state banking Laws (other than reports or documents which such Party is not permitted to disclose under applicable Law, properties, books in which case such Party shall notify the other Party of the nondisclosure and records the nature of Seller, each Company such information) and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 concerning its business, properties and personnel as the Business as such Persons other party may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityrequest.
(b) On and after All information furnished by NCC to United or its representatives pursuant hereto shall be treated as the Closing Datesole property of NCC and, Seller will afford promptly to Buyer if the Merger shall not occur, United and its agents representatives shall return to NCC all of such written information and all documents, notes, summaries or other materials containing, reflecting or referring to, or derived from, such information. United shall, and shall use its commercially reasonable access efforts to cause its books of accountrepresentatives to, financial and other records (including accountant's work papers), keep confidential all such information, employees and auditors shall not directly or indirectly use such information for any competitive or other commercial purpose. The obligation to keep such information confidential shall continue for three (3) years from the date the proposed Merger is abandoned and shall not apply to (i) any information which (x) was already in United’s possession prior to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating disclosure thereof; (y) was then generally known to the Businesspublic; provided that any such access or (z) was disclosed to United by Buyer shall a third party not unreasonably interfere with the conduct bound by an obligation of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses confidentiality, or (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefitsii) actually and reasonably incurred in connection with the foregoingdisclosures made as required by Law.
(c) Sellers All information furnished by United or its Subsidiaries to NCC or their respective representatives pursuant hereto shall be treated as the sole property of United and, if the Merger shall not occur, NCC and the Companies agree their respective representatives shall return to provide United all of such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letterswritten information and all documents, includingnotes, without limitationsummaries or other materials containing, (A) assisting in the preparation of offering circularsreflecting or referring to, confidential information memoranda or derived from, such information. NCC shall, and rating agency presentations with respect to the Debt Financings, (B) using shall use its respective commercially reasonable efforts to prepare cause its respective representatives to, keep confidential all such information, and deliver shall not directly or indirectly use such financial information for any competitive or other commercial purpose. The obligation to keep such information confidential shall continue for three (3) years from the date the proposed Merger is abandoned and statistical shall not apply to (i) any information relating which (x) was already in NCC’s possession prior to the Business disclosure thereof by United or any of its Subsidiaries; (y) was then generally known to the public; or (z) was disclosed to NCC by a third party not bound by an obligation of confidentiality, or (ii) disclosures made as may be reasonably requested in connection with the Debt Financings, required by Law.
(Cd) making appropriate employees, accountants and advisors No investigation by any of the Companies available for due diligence meetings Parties or their respective representatives shall affect the representations and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to warranties of the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerother Parties set forth herein.
Appears in 1 contract
Access to Information. Between the date of this Agreement and the Effective Time, (a) From the date hereof until the Closing Date, Seller Company and Acquiror will each (i) give, give the other party and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access access, during regular business hours upon reasonable notice, to all offices and other facilities of such party and its Subsidiaries and to all books and records of such party and its Subsidiaries, (ii) permit the other party to make such reasonable inspections of the offices, propertiesfacilities, books and records of Seller, each Company and each Subsidiary relating to the Businessdescribed in clause (i) as it may require, (iiiii) furnish, cause its officers and will cause each Company and each Subsidiary those of its Subsidiaries to furnish, to Buyer, its counsel, financial advisors, auditors and furnish the other authorized representatives party with 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financingsbusiness and properties of the Company and Broadcasting, or Acquiror and its Subsidiaries, as the case may be, as the other party may, from time to time, reasonably request, and (Biv) using reasonable efforts permit Acquiror to prepare conduct, at its expense, environmental tests and deliver assessments and (b) Acquiror will keep the Company informed, and the Company will keep Acquiror informed, in each case as to material developments affecting the other party and its Subsidiaries. All such financial access and statistical information relating obtained by Acquiror and its authorized representatives shall be subject to the Business as may terms and conditions of the letter agreement between the Company and Acquiror dated in February 1998 (the “Confidentiality Agreement”). All such information obtained by the Company and its authorized representatives, and, after the Closing, all other information regarding the Broadcasting Assets, or its business and operations which Newco or any of its Subsidiaries possesses or has access to (including pursuant to Section 6.17), shall be reasonably requested treated in connection accordance with the Debt Financings, (C) making appropriate employees, accountants and advisors terms of the Companies available for due diligence meetings Confidentiality Agreement as if such agreement obligated such Persons to hold such information confidential on the same basis as set forth therein MUTATIS MUTANDIS and for participation in meetings with rating agencies Acquiror and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting its Subsidiaries were beneficiaries of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyersuch obligations.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Lee Enterprises, Inc)
Access to Information. (a1) From During the date hereof Pre-Closing Period, Seller shall and shall cause its Affiliates to, afford to Purchaser and its Representatives (including to the extent such Representatives are acting on behalf of or at the request of the Debt Financing Sources) reasonable access, at Purchaser’s expense and under the supervision of Seller’s personnel, upon reasonable prior notice during normal business hours and in such a manner as to not unreasonably disrupt the normal operations of the Business or the business and operations of Seller and its Affiliates, to its properties, books, records, personnel and Representatives to obtain all information concerning the Business, as Purchaser may reasonably request. All information provided pursuant to this Section 5.02 shall remain subject in all respects to the Confidentiality Agreement and all applicable terms of this Agreement, including the provisions of Section 10.02, as applicable.
(2) Subject to Section 10.02, from and after the Closing Date until the fifth anniversary thereof, in connection with (i) the preparation of Tax Returns, financial statements or audits, (ii) compliance with reporting obligations under any applicable Laws or Educational Laws or (iii) the resolution of any Third Party claims made against or incurred by Seller or its Affiliates in respect of periods prior to the Closing, upon reasonable prior notice, Purchaser shall, and shall cause each of the Company Group and their respective Affiliates and Representatives to (A) afford the Representatives of Seller reasonable access, during normal business hours, to all the properties, books, Contracts, Tax Returns, financial records and other information of Purchaser and its Affiliates in respect of the Company Group and the Business relating to periods prior to the Closing Date, Seller will (iB) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access furnish to the offices, properties, books and records Representatives of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, Seller such additional financial advisors, auditors and other authorized representatives such financial and operating data and other information regarding the Company Group and the Business relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access periods prior to the Closing Date as Seller or its Representatives may from time to personnel records time reasonably request and (C) make available to the Representatives of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents reasonable access Subsidiaries and direct and indirect equityholders those employees of the Purchaser and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence may be necessary to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to assist the extent necessary or useful for Buyer Seller in connection with its inquiries for any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business purposes referred to above. If reasonably requested by Purchaser based on the advice of Sellercounsel that such an agreement is necessary or desirable, Seller or one of its Subsidiaries shall enter into a customary joint defense agreement or common interest agreement with Purchaser and its Affiliates with respect to any information to be provided to Seller pursuant to this Section 5.02(b). Buyer shall bear all of the Prior to incurring any material out-of-pocket costs expenses associated with requests made by Seller under this Section 5.02(b), Purchaser and expenses Seller shall discuss and agree in writing on the estimated amount of such expenses; provided that Purchaser shall have no obligation to incur any expense which is not agreed upon by Seller and shall not be in breach of this Section 5.02(b) as a result thereof. Seller shall promptly reimburse Purchaser (including attorneys' fees, but excluding reimbursement or Purchaser’s Affiliates) for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred associated with requests made by Seller, the Companies or any Subsidiaries in connection with the foregoing Seller under this Section 5.02(b). Any information provided to Seller and its Representatives pursuant to this Section 5.02(b) shall be paid considered Confidential Information and subject to Section 5.03.
(3) Purchaser agrees that it shall use commercially reasonable efforts to preserve and keep, or reimbursed promptly following demand thereforcause to be preserved and kept, all books and records in respect of the Business and the Company Group in the possession of Purchaser or its Affiliates for a period of six years from the Closing Date or such longer time as may be required by BuyerLaw or Educational Law.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Laureate Education, Inc.)
Access to Information. (a) From the date hereof until the Closing Date, Seller will FUR hereby acknowledges that (i) giveKimco may be in possession of material, and will cause each Company and each Subsidiary to give, Buyernonpublic information regarding ATLRS, its counselfinancial condition, financial advisorsresults of operation, auditors and other authorized representatives reasonable access to the officesbusiness, properties, books assets, liabilities, management, projections, appraisals, and records plans, proposals and prospects, including information that may have been provided in connection with ATLRS' solicitation of Seller, each Company offers for the Hylan Shopping Center and each Subsidiary relating consideration of proposals with respect to a transaction involving the Business, entire company; (ii) furnish, and will cause each Company and each Subsidiary such information may be materially adverse to 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 FUR's interests; and (iii) instruct the employees, counsel and financial advisors if FUR were in possession of Seller some or all of such information FUR might not be willing to sell any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the outATLRS Shares on the terms set forth herein, or at all, or would have a materially different view of the benefits of the transaction. FUR also acknowledges and agrees that Kimco shall have no obligation to disclose to FUR any of the information referred to in the preceding sentence. FUR hereby, on its own behalf and on behalf of its affiliates and its and their respective successors and assigns, irrevocably waives and renounces any and all claims of any nature whatsoever it may have or acquire against Kimco, its directors, officers, employees, representatives, or any of their respective affiliates and their respective heirs, successors and assigns, based on non-of-pocket costs disclosure, deceptive trade practices, other laws or otherwise, and expenses (including attorneys' feesacknowledges that neither Kimco nor any of its directors, but excluding reimbursement for general overheadofficers, salaries and employee benefits) actually and reasonably incurred employees, representatives or any of their respective affiliates have made any representation or warranty, whether express or implied, of any kind or character in respect of or in connection with the foregoing.
(c) Sellers and ATLRS Shares or the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings transactions contemplated by the Commitment Lettersthis agreement, including, without limitation, (A) assisting except as set forth in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerSection 3 hereof.
Appears in 1 contract
Access to Information. (a) From Upon reasonable notice and subject to applicable Laws and privileges relating to the date hereof until the Closing Dateexchange of information, Seller will (i) giveInvestor shall and shall cause its Subsidiaries to, and will (ii) the Company shall and shall use commercially reasonable efforts to cause each Company and each Subsidiary to, afford to givethe officers, Buyeremployees, its counselaccountants, financial advisors, auditors counsel and other authorized representatives Representatives of Investor and the Company, during normal business hours during the period prior to Closing, reasonable access to the offices, all of its and its Subsidiaries’ properties, books books, Contracts, commitments and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishrecords, and will cause each Company to its and each Subsidiary to furnishits Subsidiaries’ officers, to Buyeremployees, 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 employeesaccountants, counsel and financial advisors of Seller or any Company or any Subsidiary other Representatives and, during such period, each such party shall, and shall cause its Subsidiaries to, promptly make available to cooperate with Buyer in its investigation of the Businessother party, including (without limitation) any Phase I environmental investigations relating to properties used subject, in the Business. Any investigation case of competitively sensitive information, to any customary “clean-room” arrangements agreed between the parties, (A) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to this Section the requirements of federal securities Laws and (B) all other information concerning its business, properties and personnel as the other party may reasonably request. Each such party shall be conducted in such manner as not use commercially reasonable efforts to interfere unreasonably minimize any interference with the conduct of the other party’s regular business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of operations during any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitysuch access.
(b) On This Section 5.9 shall not require Investor and after the Closing DateCompany or any of its Subsidiaries to permit any access, Seller will afford promptly or to Buyer and its agents reasonable access disclose any information, that in the reasonable, good faith judgment of such party would reasonably be expected to its books result in (i) any violation of account, financial and other records any Contract or Law to which such party is a party or is subject or cause any privilege (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation attorney-client privilege) which such party or any other reasonable business purpose relating of its Subsidiaries would be entitled to assert to be undermined with respect to such information or violate or prejudice the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct rights of the business other party’s or its Subsidiaries’ customers or (ii) if such party or any of Sellerits Subsidiaries, on the one hand, and the other party or any of its Subsidiaries, on the other hand, are adverse parties in a litigation, such information being reasonably pertinent thereto. Buyer shall bear all Each of Investor and the Company will use their reasonable best efforts to make appropriate substitute disclosure arrangements under circumstances in which the restrictions of clause (i) of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingpreceding sentence apply.
(c) Sellers The information provided pursuant to this Section 5.9 shall be used solely for the purpose of the Transactions, and unless and until the Transactions are consummated, such information shall be kept confidential by the recipient thereof in accordance with, and such recipient shall otherwise abide by and be subject to the terms and conditions of the Confidentiality Agreement. If this Agreement is terminated, Investor and the Companies agree Company shall and shall cause each of their Representatives to, return or destroy (and certify destruction of) all information provided pursuant to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthis Section 5.9.
Appears in 1 contract
Access to Information. Convergent has agreed to (a) From the date hereof until the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to giveof its subsidiaries to) give the officers, Buyeremployees, its counselaccountants, financial advisors, auditors counsel and other authorized representatives of our Parent, upon reasonable notice given by our Parent to Convergent prior to the later of the termination date of the merger agreement or the date our Parent appoints a majority of the board of directors, reasonable access to the offices, all its properties, books books, contracts, commitments and records of Sellerrecords, each Company and each Subsidiary relating to the Businessand, during that period, Convergent will (ii) furnish, and will cause each Company and of its subsidiaries to) furnish reasonably promptly to our Parent a copy of each Subsidiary to furnishreport, to Buyerschedule, its counsel, financial advisors, auditors registration statement and other authorized representatives document filed or received by it during such financial period pursuant to the requirements of federal securities laws and operating data and all other information relating concerning its business, properties and personnel as our Parent reasonably requests. We have agreed to the Business as such Persons may reasonably request keep that information confidential, except in limited circumstances. NOTIFICATION OF COMPETING TRANSACTIONS. Convergent will promptly, and (iii) instruct the employeesin any event within twenty-four hours, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation notify our Parent of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records existence of any Company proposal, discussion, negotiation or inquiry received by Convergent, and Convergent will promptly, and in any Subsidiary relating event within twenty-four hours, communicate to individual performance our Parent the material terms of any proposal, discussion, negotiation or evaluation recordsinquiry, medical histories or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject reasonably be expected to lead to an Acquisition Proposal, which it may receive (and will 50 promptly, and in any Company event within twenty-four hours, provide to our Parent copies of any written materials received by Convergent, any subsidiary of Convergent or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer their respective representatives in connection with a proposal, discussion, negotiation or inquiry) and the identity of the party making the proposal or inquiry or engaging in such discussion or negotiation, and will immediately communicate to our Parent the status of the proposal, discussion or inquiry. Convergent will promptly, but in any auditevent within 24 hours, investigation, dispute or litigation or provide to our Parent any non-public information concerning Convergent provided to any other reasonable business purpose relating party which was not previously provided to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingour Parent.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing Dateearlier of the Effective Time and the termination of this Agreement, Seller will the Company shall (i) give, and will shall cause each of its Subsidiaries to) afford to the Representatives of Parent and Purchaser reasonable access, in a manner not unduly disruptive to the operations of the business of the Company and each Subsidiary to giveits Subsidiaries, Buyerduring normal business hours and upon reasonable notice, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each the Company and its Subsidiaries and, during such period, shall (and shall cause each Subsidiary relating of its Subsidiaries to) furnish to such Representatives all information concerning the Businessbusiness, properties and personnel of the Company and its Subsidiaries, in each case as may reasonably be requested; provided, however, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Purchaser if such disclosure would, in the reasonable judgment of the Company, (i) violate applicable Law (including applicable Antitrust Laws) or any request or requirement of any Governmental Authority or the provisions of any agreement to which the Company or any of its Subsidiaries is a party, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and result in the waiver of any attorney-client or other authorized representatives such financial and operating data and other information relating to the Business as such Persons may reasonably request and legal privilege or (iii) instruct violate any confidentiality agreement to which the employees, counsel and financial advisors of Seller or any Company or any Subsidiary of its Subsidiaries is a party (in each case, it being agreed that the Company shall give notice to cooperate with Buyer in its investigation Parent of the Businessfact that it is withholding such access or information and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such access or information, including (without limitation) any Phase I environmental investigations relating as applicable, to properties used be provided, or made available, in the Business. Any investigation pursuant a manner that would not reasonably be expected to this Section shall be conducted in cause such manner as not to interfere unreasonably with the conduct of the business of Seller a violation, disclosure, waiver or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitybreach).
(b) On The Confidentiality Agreement shall apply with respect to information furnished under this Section 8.1 by the Company, its Subsidiaries and after their Representatives. Prior to the Closing Dateand except as otherwise contemplated by this Agreement, Seller will afford promptly to Buyer each of Parent and Purchaser shall not, and shall cause their respective Representatives not to, contact or otherwise communicate with the employees (other than senior executives), customers, suppliers, distributors, labor unions, landlords, lessors, banks or other lenders of the Company and its agents reasonable access Subsidiaries, or, except as required pursuant to its books of accountSection 8.2, financial and other records (including accountant's work papers)any Governmental Authority, information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of regarding the business of Seller. Buyer shall bear all the Company, this Agreement or the Transactions without the prior written consent of the out-of-pocket costs and expenses (including attorneys' feesCompany, but excluding reimbursement for general overheadwhich consent shall not be unreasonably withheld, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingconditioned or delayed.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From The Company and its subsidiaries shall afford to Parent and Subsidiary and their respective accountants, counsel, financial advisors and other representatives (the date hereof until "Parent Representatives") and Parent and its subsidiaries shall afford to the Closing DateCompany and its accountants, Seller will counsel, financial advisors and other representatives (the "Company Representatives") full access during normal business hours throughout the period prior to the Effective Time to all of their respective properties, books, contracts, commitments and records (including, but not limited to, Tax Returns) and, during such period, shall furnish promptly to one another (i) givea copy of each report, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors schedule and other authorized representatives reasonable access document filed or received by any of them pursuant to the officesrequirements of federal or state securities laws or filed by any of them with the SEC or which may have a material effect on their respective businesses, properties or personnel and (ii) such other information concerning their respective businesses, operations, properties, books assets, condition (financial or other), results of operations and records of Sellerpersonnel as Parent or Subsidiary or the Company, each Company and each Subsidiary relating to as the Businesscase may be, (ii) furnish, and will cause each 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 Business as such Persons may shall reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any request; provided that no investigation pursuant to this Section 7.1 shall be conducted amend or modify any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Merger. Parent and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Parent Representatives to hold, and the Company and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Company Representatives to hold, in such manner strict confidence all non-public documents and information furnished to Parent and Subsidiary or to the Company, as not to interfere unreasonably the case may be, in connection with the conduct transactions contemplated by this Agreement, except that (i) Parent, Subsidiary and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals, the Company Required Statutory Approvals and the Company Stockholders' Approval and (ii) each of Parent, Subsidiary and the business of Seller or the Business. Notwithstanding the foregoing, unless Company may disclose any information that it is required by TUPE, Buyer shall not have access prior law or judicial or administrative order to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitydisclose.
(b) On In the event that this Agreement is terminated in accordance with its terms, each party shall promptly redeliver to the other all non-public written material provided pursuant to this Section 7.1 and after the Closing Dateshall not retain any copies, Seller will afford promptly to Buyer and its agents reasonable access to its books extracts or other reproductions in whole or in part of accountsuch written material. In such event, financial all documents, memoranda, notes and other records writings prepared by Parent or the Company based on the information in such material shall be destroyed (including accountant's work papersand Parent and the Company shall use their respective reasonable best efforts to cause their advisors and representatives to similarly destroy 36 their documents, memoranda and notes), information, employees and auditors to the extent necessary or useful for Buyer such destruction (and reasonable best efforts) shall be certified in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any writing by an authorized officer supervising such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingdestruction.
(c) Sellers The Company shall promptly advise Parent and Parent shall promptly advise the Companies agree to provide such cooperation Company in writing of any change or the occurrence of any event after the date of this Agreement having, or which, insofar as may can reasonably be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersforeseen, including, without limitation, (A) assisting in the preparation future may have, any material adverse effect on the business, operations, properties, assets, condition (financial or other), or results of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors operations of the Companies available for due diligence meetings Company and for participation in meetings with rating agencies its subsidiaries or Parent and prospective lenders and investorsits subsidiaries, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to as the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Sellercase may be, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyertaken as a whole.
Appears in 1 contract
Access to Information. (a) From the date hereof until Until the Closing Date, Seller will the Company shall use its reasonable best efforts to (i) giveafford to the officers, and will cause each Company and each Subsidiary to giveemployees, Buyeraccountants, its counsel, financial advisors, auditors financing sources and other authorized representatives of the Investor (collectively, "Advisors"), reasonable access during normal business hours to its properties (including access to existing real property appraisals and existing Phase I environmental reports), books, contracts, commitments and records; (ii) furnish the offices, propertiesInvestor and its Advisors with copies of all such contracts, books and records and other existing documents and data as the Investor and/or its Advisors may reasonably request; (iii) make available during normal business hours to the Advisors the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of Sellerthe Company's business, each properties, prospects and personnel as the Investor may reasonably request; and (iv) furnish the Investor and its Advisors with such additional financial, operating and other data and information concerning the Company and each the Subsidiary relating to as the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, Investor and/or its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Business as such Persons Advisors may reasonably request and (iiias may be reasonably available to the Company; provided, however, that nothing in this Section 5.4(a) instruct or otherwise shall require the employees, counsel and Company to furnish to the Investor or its Advisors any materials prepared by the Company's financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitylegal advisors.
(b) On The Investor shall keep all information disclosed to the Persons identified in clause (a) above pursuant to this Agreement confidential in accordance with the terms of the Confidentiality Agreement. Notwithstanding anything to the contrary contained herein or in the Confidentiality Agreement, the parties hereto and after each of their respective employees, representatives or other agents, are permitted to disclose to any and all Persons, without limitations of any kind, the Closing Date, Seller will afford promptly to Buyer tax treatment and its agents reasonable access to its books tax structure of account, financial the transactions contemplated hereby and other records all materials of any kind (including accountant's work papersopinions or other tax analyses) that are or have been provided to such parties related to such tax treatment and tax structure; provided, however, that the foregoing permission to disclose the tax treatment and tax structure does not permit the disclosure of any information that is not relevant to understanding the tax treatment or tax structure of the transactions contemplated hereby (including the identity of any party and the amounts paid in connection with the transactions); provided, informationfurther, employees however, that the tax treatment and auditors tax structure shall be kept confidential to the extent necessary to comply with federal or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingstate securities laws.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From During the date hereof Pre-Closing Period, Seller shall and shall cause its Affiliates to, afford to Purchaser and its Representatives (including to the extent such Representatives are acting on behalf of or at the request of the Debt Financing Sources) reasonable access, at Purchaser’s expense and under the supervision of Seller’s personnel, upon reasonable prior notice during normal business hours and in such a manner as to not unreasonably disrupt the normal operations of the Business or the business and operations of Seller and its Affiliates, to its properties, books, records, personnel and Representatives to obtain all information concerning the Business, as Purchaser may reasonably request. All information provided pursuant to this Section 5.02 shall remain subject in all respects to the Confidentiality Agreement and all applicable terms of this Agreement, including the provisions of Section 10.02, as applicable.
(b) Subject to Section 10.02, from and after the Closing Date until the fifth anniversary thereof, in connection with (i) the preparation of Tax Returns, financial statements or audits, (ii) compliance with reporting obligations under any applicable Laws or Educational Laws or (iii) the resolution of any Third Party claims made against or incurred by Seller or its Affiliates in respect of periods prior to the Closing, upon reasonable prior notice, Purchaser shall, and shall cause each of the Company Group and their respective Affiliates and Representatives to (A) afford the Representatives of Seller reasonable access, during normal business hours, to all the properties, books, Contracts, Tax Returns, financial records and other information of Purchaser and its Affiliates in respect of the Company Group and the Business relating to periods prior to the Closing Date, Seller will (iB) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access furnish to the offices, properties, books and records Representatives of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, Seller such additional financial advisors, auditors and other authorized representatives such financial and operating data and other information regarding the Company Group and the Business relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access periods prior to the Closing Date as Seller or its Representatives may from time to personnel records time reasonably request and (C) make available to the Representatives of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents reasonable access Subsidiaries and direct and indirect equityholders those employees of the Purchaser and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence may be necessary to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to assist the extent necessary or useful for Buyer Seller in connection with its inquiries for any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business purposes referred to above. If reasonably requested by Purchaser based on the advice of Sellercounsel that such an agreement is necessary or desirable, Seller or one of its Subsidiaries shall enter into a customary joint defense agreement or common interest agreement with Purchaser and its Affiliates with respect to any information to be provided to Seller pursuant to this Section 5.02(b). Buyer shall bear all of the Prior to incurring any material out-of-pocket costs expenses associated with requests made by Seller under this Section 5.02(b), Purchaser and expenses Seller shall discuss and agree in writing on the estimated amount of such expenses; provided that Purchaser shall have no obligation to incur any expense which is not agreed upon by Seller and shall not be in breach of this Section 5.02(b) as a result thereof. Seller shall promptly reimburse Purchaser (including attorneys' fees, but excluding reimbursement or Purchaser’s Affiliates) for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred associated with requests made by Seller, the Companies or any Subsidiaries in connection with the foregoing Seller under this Section 5.02(b). Any information provided to Seller and its Representatives pursuant to this Section 5.02(b) shall be paid considered Confidential Information and subject to Section 5.03.
(c) Purchaser agrees that it shall use commercially reasonable efforts to preserve and keep, or reimbursed promptly following demand thereforcause to be preserved and kept, all books and records in respect of the Business and the Company Group in the possession of Purchaser or its Affiliates for a period of six years from the Closing Date or such longer time as may be required by BuyerLaw or Educational Law.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Access to Information. 6.3.1. BAB will afford, upon reasonable notice, to GBB and its representatives, counsel, accountants, agents and employees reasonable access during normal business hours to all of its and BABANK's business, operations, properties, books, files and records and will do everything reasonably necessary to enable GBB and its representatives, counsel, accountants, agents and employees to make a complete examination of the financial statements, business, assets and properties of BAB and BABANK and the condition thereof and to update such examination at such intervals as GBB shall deem appropriate. Such examination shall be conducted in cooperation with the officers of BAB and BABANK and in such a manner as to minimize any disruption of, or interference with, the normal business operations of BAB and BABANK. Upon the request of GBB, BAB will request PwC to provide reasonable access to representatives of PwC working on behalf of GBB to auditors' work papers with respect to the business and properties of BAB and BABANK, including tax accrual work papers prepared for BAB and BABANK during the preceding 60 months, other than (a) From books, records and documents covered by the attorney-client privilege, or that are attorneys' work product, and (b) books, records and documents that BAB or BABANK is legally obligated to keep confidential. No examination or review conducted under this section shall constitute a waiver or relinquishment on the part of GBB of the right to rely upon the representations and warranties made by BAB herein; provided, that GBB shall disclose to BAB any fact or circumstance it may discover which GBB believes renders any representation or warranty made by BAB hereunder incorrect in any respect. GBB covenants and agrees that it, its subsidiaries, and their respective representatives, counsel, accountants, agents and employees will hold in strict confidence all documents and information concerning BAB and BABANK so obtained from any of them (except to the extent that such documents or information are a matter of public record or require disclosure in the Proxy Statement and Prospectus or any of the public information of any applications required to be filed with any Governmental Entity to obtain the approvals and consents required to effect the transactions contemplated hereby), and if the transactions contemplated herein are not consummated, such confidence shall be maintained and all such documents shall be returned to BAB.
6.3.2. A representative of GBB, selected by GBB in its sole discretion, shall be authorized and permitted to review each loan, lease, or other credit funded or renewed by BAB or BABANK after the date hereof, and all information associated with such loan, lease or other credit within three Business Days of such funding or renewal, such review to take place, if possible, on BAB's premises.
6.3.3. A representative of GBB, selected by GBB in its sole discretion, shall be permitted by BAB and BABANK to attend all regular and special Board of Directors' and committee meetings of BAB and BABANK from the date hereof until the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation Effective Time of the BusinessMerger; provided, including (without limitation) however, that the attendance of such representative shall not be permitted at any Phase I environmental investigations relating to properties used in meeting, or portion thereof, for the Business. Any investigation pursuant to sole purpose of discussing the transactions contemplated by this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller Agreement or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records obligations of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityBAB under this Agreement.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From During the period commencing on the date hereof and continuing until the earlier of the termination of this Agreement and the Closing, (i) the Acquired Companies shall afford Acquiror and its accountants, counsel and other representatives, reasonable access during business hours to (A) all of the Acquired Companies’ properties, books, Contracts and records and (B) all other information concerning the Business, the Business Assets, and personnel of the Acquired Company as Acquiror may reasonably request, and (ii) the Acquired Companies provide to Acquiror and their accountants, counsel and other representatives upon request by such parties correct and complete copies of the Acquired Companies’ (A) internal financial statements, (B) Tax Returns, Tax elections and all other records and workpapers relating to Taxes, (C) a schedule of any deferred intercompany gain or loss with respect to transactions to which any of the Acquired Companies has been a party, and (D) receipts for any Taxes paid to foreign Tax Authorities.
(b) Subject to compliance with applicable Legal Requirements, from the date hereof until the Closing Dateearlier of the termination of this Agreement and the Closing, Seller will (i) giveupon reasonable request by Acquiror, Company shall confer from time to time as requested by Acquiror with one or more representatives of Acquiror to discuss any material changes or developments in the operational matters the Acquired Companies and will cause each Company the general status of the ongoing operations of Acquired Companies and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, .
(iic) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other No information relating to or knowledge obtained by Acquiror during the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation pendency of the Business, including (without limitation) transactions contemplated by this Agreement in any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 5.7 shall affect or be conducted in such manner as not deemed to interfere unreasonably with the conduct of the business of Seller modify any representation, warranty, covenant, condition or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityobligation under this Agreement.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Rapid7, Inc.)
Access to Information. Subject to Section 6.3.2, from the date of this Agreement to the Effective Time or the earlier termination of this Agreement pursuant to Section 8.1, the Company shall, shall cause its Subsidiaries to, and shall instruct each of its and its Subsidiaries’ directors, officers, employees, accountants, consultants, legal counsel, advisors, and agents and other representatives (collectively, “Company Representatives”) to: (a) From provide to Parent and Merger Sub and each of their respective officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives (collectively, “Parent Representatives,” and, each, together with each of the date hereof until Company Representatives, a “Representative”) access at reasonable times, upon reasonable prior notice to the Closing DateCompany or to the Company Representatives, Seller will (i) giveas applicable, to the properties, offices and other facilities of the Company and its Subsidiaries and the books and records thereof, and will (b) furnish, or cause each Company and each Subsidiary to givebe furnished, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to such reasonably available information concerning the officesbusiness, properties, books Contracts, assets, Liabilities, personnel and records other aspects of Sellerthe Company as Parent, each Merger Sub or the Parent Representatives may reasonably request. Any such access and availability shall include access for Parent Representatives to conduct any environmental site assessments (including sampling) or inspection in respect of environmental matters at the Company Owned Properties and the Company Leased Premises, physical inspections of the assets of the Company and each Subsidiary relating to the Business, (ii) furnishits Subsidiaries, and will cause each contact with the customers, vendors, suppliers and creditors of the Company and its Subsidiaries, in 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 Business case as such Persons Parent Representatives may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller request. No information or knowledge obtained in any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 6.3.1 shall affect or be conducted deemed to modify any representation or warranty contained in such manner as not this Agreement or the conditions to interfere unreasonably with the conduct obligations of the business of Seller or Parties to consummate the BusinessMerger. Notwithstanding the foregoing, unless required by TUPE, Buyer the Company shall not have be required to provide access prior to or disclose information where such access or disclosure would contravene any Law, binding Contract to which the Company is party or any privacy policy applicable to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityCompany’s customer information.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the officesClosing, subject to the Confidentiality Agreement and any applicable Law, Sellers shall permit Purchasers and their Representatives to have reasonable access, during regular business hours and upon reasonable advance notice, to the Target Companies' properties, premises, facilities, in each case as accompanied by personnel designated by the Sellers, who may restrict access as Sellers reasonably deem appropriate, employees and books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary related to the transactions contemplated by this Agreement and solely in furtherance of the transactions contemplated by this Agreement, but only to the extent that such access does not unreasonably interfere with the businesses, operations and properties of Sellers or useful for Buyer the Target Companies and, in connection with any auditcase, investigation, dispute or litigation or any other reasonable business purpose relating only to the extent related to the Business; provided that the foregoing shall be conducted at Purchasers' expense and shall not require (1) Sellers or any of their Affiliates to (v) permit Purchasers' or any of their respective Representatives to sample or analyze any soil or groundwater or other environmental media, or any building material, without the prior written consent of Sellers, such consent to not be unreasonably withheld, (w) permit any inspection, or to disclose any information, that would result in the disclosure of any competitively sensitive information of Sellers or of any of their Affiliates that is unrelated to the Business, (x) violate any obligations of Sellers or their Affiliates to any third party with respect to confidentiality, (y) violate any privacy or other Laws applicable to Sellers or any of their Affiliates or (z) disclose consolidated Tax Returns or any Tax Returns or Tax-related work papers not solely or primarily related to the Target Companies and the Business, (2) any disclosure by Sellers or any of their Affiliates that Sellers believe in good faith would reasonably be expected, as a result of such disclosure, to have the effect of causing the waiver of any privilege (including the attorney-client and work product privileges) (provided that the parties shall cooperate in seeking to find a way to allow disclosure of such books or records to the extent doing so would not in the good faith belief of Sellers, based on the written advice of counsel, reasonably be expected to cause such privilege to be undermined with respect to such information), (3) the auditors and accountants of any of Sellers or their Affiliates (including the Target Companies and their businesses) to make any work papers available to any Person unless and until such Person has provided customary confidentiality, hold harmless or other agreements reasonably and customarily requested by such auditors or accountants, or (4) information relating to any Sale Process conducted by Sellers or their respective Affiliates, including projections or other financial or other information relating thereto.
(b) All information provided or obtained in connection with the transactions contemplated by this Agreement (including pursuant to subsection (a) above) shall be treated as "Evaluation Material" in accordance with the Confidentiality Agreement. The terms of the Confidentiality Agreement shall continue in full force and effect until the Closing, at which time such Confidentiality Agreement shall terminate; provided that the Confidentiality Agreement shall terminate only in respect of the confidentiality obligations relating to that portion of the Evaluation Material (as defined in the Confidentiality Agreement) relating to the Business. If this Agreement is, for any reason, terminated prior to the Closing, the Confidentiality Agreement shall continue in full force and effect in accordance with its terms.
(c) Following the Closing, subject to any applicable Law and contractual confidentiality obligations, Sellers shall permit Purchasers and their Representatives and advisors (including attorneys and accountants) to have reasonable access (including to examine and make copies of, as applicable), during regular business hours and upon reasonable advance notice, at Purchasers' expense, to any books and records, documents, associates (to the extent executive officers of Sellers (to be designated by Sellers) are present) and other information (collectively, "Information") directly relating to the Business if, and to the extent, retained by Sellers or their Affiliates, in each case for any reasonable purpose directly relating to the Target Companies' Business, including in connection with (i) the preparation of Purchasers' accounting records or with any audits, (ii) any Action or Proceeding relating to or referring to the Business or the Target Companies and their Subsidiaries in any manner, (iii) any regulatory filing or matter, or (iv) any other bona fide legal or business purpose of Purchasers or their Affiliates; provided that Purchasers shall reimburse Sellers promptly for all documented, reasonable and necessary out- of-pocket costs and expenses incurred by Sellers in connection with any such request; provided, further, that Sellers may redact or withhold any portion of any Information that does not relate to the Business or the Target Companies prior to providing access thereto to Purchasers or their Representatives or advisors.
(d) Following the Closing, subject to any applicable Law and contractual confidentiality obligations, Purchasers shall permit Sellers and their Representatives and advisors (including attorneys and accountants) to have reasonable access (including to examine and make copies of, as applicable), during regular business hours and upon reasonable advance notice, at Sellers' expense, to any Information directly relating to the Business or the Target Companies which were not retained by Buyer shall not unreasonably interfere Sellers or their Affiliates (including the Target Companies' records) for any reasonable purpose directly relating to the businesses of Sellers or their Affiliates, including in connection with (i) the conduct preparation of Sellers' or their Affiliates' accounting records or with any audits, (ii) any Action or Proceeding relating to or referring to the pre-Closing Business or the pre-Closing operations of the Target Companies in any manner, (iii) any regulatory filing or matter or (iv) any other bona fide legal or business purpose of Seller. Buyer Sellers or their Affiliates; provided that Sellers shall bear reimburse Purchasers promptly for all of the documented, reasonable and necessary out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred by Purchasers in connection with the foregoingany such request.
(ce) At the Closing, Sellers shall transmit, and shall cause their respective Affiliates to transmit, to Purchasers (or the Target Companies) all Transferred Books and Records to the extent in the possession of Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect their respective Affiliates or to the Debt Financings, (B) using reasonable efforts extent Sellers or their respective Affiliates have the right to prepare and so deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.Transferred Books and
Appears in 1 contract
Samples: Purchase Agreement (Broadridge Financial Solutions, Inc.)
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) givethe Company, Cementos and the Argos Parties shall, and will the Company, Cementos and the Argos Party shall cause each Company their respective Subsidiaries to, (a) upon reasonable advance notice, give Summit and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors Subsidiaries and other authorized representatives their respective Representatives reasonable access to the offices, properties, books and records of Seller, each Company the ANAC Companies for the purpose of furthering the consummation of the Transactions and each Subsidiary relating to integration planning with respect thereto or obtaining the Business, (ii) furnishR&W Insurance Policy, and will cause each 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 Business as such Persons may reasonably request and (iiib) instruct the employees, counsel and financial advisors Representatives of Seller or any Company or any Subsidiary the ANAC Companies to cooperate with Buyer in Summit and its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the BusinessAffiliates and their respective Representatives. Any request for data or other information, any request for access or cooperation or any investigation pursuant to this Section Section 7.02 shall be made or conducted in such manner as not to (i) interfere unreasonably with the conduct of the business Business, (ii) result in the loss of Seller any attorney-client privilege of the ANAC Companies or (iii) violate any Applicable Law; provided that in the Business. Notwithstanding cases of clauses (ii) and (iii), prior to withholding any access or information pursuant to the foregoing, unless required the Company shall notify Summit in writing of the nature of the information being withheld and take any actions as may reasonably be requested by TUPESummit, Buyer shall not have at Summit’s expense, to implement alternate arrangements in order to allow Summit such access prior or information to the Closing Date fullest extent reasonably practicable under the circumstances without causing such loss or violation. No investigation by Summit, any of its Affiliates or any of their respective Representatives or other information received by, or knowledge of, Summit, any of its Affiliates or any of their respective Representatives shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Argos Parties or Company hereunder. All information disclosed hereunder shall be governed by the terms of the Confidentiality Agreement. Notwithstanding anything in this Section 7.02 to the contrary, (A) nothing in this Section 7.02 shall require the Argos Parties, Cementos, the ANAC Companies or their respective Affiliates to disclose or provide any other party with access to any personnel records of any Company or any Subsidiary relating to individual performance or evaluation recordsevaluations, medical histories or other information which that in Seller's the disclosing party’s good faith opinion is sensitive or the disclosure of which could subject any Company the disclosing party or any Subsidiary its Affiliates to a material risk of liability.
liability or (b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents reasonable access to its books of account, financial and other records (including accountant's work papersB), information, employees and auditors physical access pursuant to this Section 7.02 may be limited to the extent necessary that Cementos or useful for Buyer the Argos Parties reasonably determine, in connection with any audit, investigation, dispute or litigation light of COVID-19 or any other reasonable business purpose relating to the Business; provided COVID-19 Measures, that any such access by Buyer shall not unreasonably interfere with would jeopardize the conduct health and safety of the business any of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' feesits directors, but excluding reimbursement for general overheadofficers, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingemployees or Representatives.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From the date hereof until Effective Date, through and including the Closing Date, Seller upon reasonable notice, the Company will (and the Members will cause the Company to) (i) give, give Buyer and will cause each Company Buyer’s lenders and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other their respective authorized representatives reasonable access to all of the officesCompany’s personnel, books, records, offices and other facilities and properties, books and records of Seller, each Company and each Subsidiary relating as well as to the BusinessCompany’s tax and accounting advisors, (ii) furnish, permit Buyer and will its lenders and their respective representatives to make such inspections of the foregoing as they may reasonably request and (iii) cause each Company their respective officers to furnish Buyer and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors lenders and other authorized their respective representatives with such financial and operating data and other information relating with regard to the Business Company’s business, operations and properties as such Persons they may from time to time reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Businessrequest. Any investigation pursuant to this Section shall such access will be conducted provided, and all such inspections will be conducted, at reasonable times and in such a manner as not to interfere unreasonably with the conduct operation of the business of Seller or the BusinessCompany’s business. Notwithstanding the foregoing, unless required All such information xxxx be kept confidential by TUPE, Buyer shall and not have access disclosed to any third party; prior to the Closing Date Closing, except that Buyer may disclose such information to personnel records of any its directors, officers, employees, affiliates and advisors as reasonably required. Also during such period, the Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or and the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On Members shall provide such reasonable and after the Closing Date, Seller will afford promptly to customary assistance as Buyer and its agents reasonable access to its books of account, financial tenders and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer their respective representatives may reasonably request in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating Buyer’s effort to arrange for and secure financing for the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings transactions contemplated by the Commitment Lettersthis Agreement, including, without limitation, facilitating customary lender due diligence, arranging for senior officers of the Company to meet with prospective lenders, negotiating with and obtaining from the Company’s landlords and lessors such landlord estoppel certificates, waivers and other consents as may be requested by Buyer’s lenders.
(Ab) assisting in After the preparation of offering circularsClosing, confidential information memoranda upon reasonable notice, Buyer will cooperate with the Seller’s Representative and rating agency presentations with respect will give or cause to be given to the Debt FinancingsSeller’s Representative and his representatives, reasonable access to representatives of Buyer and such information (Bincluding the right to make copies or extracts thereof) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business (including properties books, contracts, financial statements, tax returns, commitments, tiles and records) as may be is reasonably requested for the preparation or filing of any tax return, filing or report, financial statement or report, in connection with any response or submission to any taxing authority or which is otherwise reasonably requested. Any such access will be provided, and all such inspections will be conducted, at reasonable times and in such a manner as not to interfere unreasonably with the Debt Financings, (C) making appropriate employees, accountants and advisors operations of the Companies available for due diligence meetings Business. In addition, after the Closing, upon the reasonable request of the Seller’s Representative, any access and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect information provided by Buyer to the review and granting of security interests in collateral for Members, to the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies ’s Representative or any Subsidiaries in connection with representative of the foregoing shall pursuant to this Section 6.2 or otherwise pursuant to this Agreement, may be paid conditioned upon the execution and delivery by the recipient of a confidentiality or reimbursed promptly following demand therefor, by nondisclosure agreement covering the same in form and substance reasonably satisfactory to Buyer.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Telava Networks Inc)
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer shall (and shall cause the Company and each of its agents subsidiaries and other Affiliates to), during normal business hours and upon reasonable notice, make available and provide each of the Selling Stockholders and their respective representatives (including, without limitation, counsel and independent auditors) with access to the facilities and properties of the Company and each of its books of accountsubsidiaries and to all 57 information, financial files, documents and other records (including accountant's work papers), information, employees written and auditors computer) relating to the extent necessary Company or useful its subsidiaries or any of their businesses or operations for Buyer any and all periods prior to or including the Closing Date which such Selling Stockholder (or any Affiliate of such Selling Stockholder) requires with respect to any reasonable business purpose or in connection with any auditclaim, investigationdispute, dispute action, cause of action, investigation or litigation proceeding of any kind by or against any person including any Buyer Indemnified Party or any other reasonable business purpose relating to Selling Stockholders Indemnified Party, and shall (and shall cause the Business; provided that any Company and each of its subsidiaries to) cooperate fully with such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs Selling Stockholder and expenses its representatives (including attorneys' feesincluding, but excluding reimbursement for general overheadwithout limitation, salaries its counsel and employee benefitsindependent auditors) actually and reasonably incurred in connection with the foregoing.
(c) Sellers , at such Selling Stockholder's sole cost and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersexpense, including, without limitation, by making tax, accounting and financial personnel and other appropriate employees and officers of the Company and each of its subsidiaries available to each of the Selling Stockholders and their respective representatives (A) assisting including, without limitation, counsel and independent auditors), with regard to any reasonable business purpose (including as aforesaid). Without limiting the generality of this Section 6.4, following the Closing, the Selling Stockholders and their representatives shall be given the opportunity to review, comment upon and suggest changes or corrections to any Tax Returns, reports and declarations which include the Company or any of its subsidiaries prepared by Buyer, Capstar or any Affiliate thereof, including without limitation the Company and its subsidiaries (and the work papers used in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect thereof) which relate to or include any period or portion thereof ending on or before the Closing Date (or periods beginning prior to the Debt FinancingsClosing Date and ending subsequent thereto, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating if any), in each case prior to the Business as may be reasonably requested filing thereof (but in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access no event less than 30 days prior to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyersuch filing).
Appears in 1 contract
Samples: Stock Purchase Agreement (Capstar Broadcasting Partners Inc)
Access to Information. (a) From During the date hereof period commencing on the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, (i) the Company shall afford Parent and its Representatives reasonable access during business hours to (A) all of the properties, books, Contracts and records of the Company and each Subsidiary and (B) all other information concerning the Business, results of operations, product development efforts, properties (tangible and intangible, including Intellectual Property) and personnel of the Company or any Subsidiary as Parent may reasonably request, (ii) the Company shall maintain the virtual data room established in connection with this Agreement and provide Parent and its Representatives access thereto (and prior to the Closing Date, Seller will the Company shall provide Parent a DVD containing the contents of such virtual data room) and (iiii) givethe Company shall, promptly upon request, provide to Parent and will cause each its Representatives true, correct and complete copies of the following documents of the Company and each Subsidiary in the Company’s or such Subsidiary’s possession: (A) internal financial statements and documentation regarding internal controls, (B) Tax Returns, Tax elections and all other records and workpapers relating to giveTaxes, Buyer(C) a schedule of any deferred intercompany gain with respect to transactions to which the Company or any Subsidiary has been a party and (D) receipts for any Taxes paid to foreign Tax Authorities; provided, its counselhowever, financial advisors, auditors and other authorized representatives reasonable that the Company may restrict the foregoing access to the officesextent that (X) compliance with this Section 5.4(a) would adversely affect any attorney-client privilege of the Company or (Y) any Applicable Legal Requirement requires that such party restrict or prohibit access to any such properties or information, propertiesor the terms of any Contract require that such party restrict or prohibit access to such Contract.
(b) Subject to compliance with Applicable Legal Requirements, books from the Agreement Date until the earlier of the termination of this Agreement and records the Effective Time, the Company shall notify Parent of, and confer from time to time as requested by Parent with one or more of SellerParent’s Representatives to discuss, each any material changes or developments in the operational matters of the Company and each Subsidiary relating to and the Business, (ii) furnish, and will cause each 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 general status of the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation ongoing operations of the Business, including .
(without limitationc) No information or knowledge obtained in any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 5.4 shall affect or be conducted in such manner as not deemed to interfere unreasonably with the conduct of the business of Seller modify any representation, warranty, covenant, agreement or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitycondition contained herein.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Sourcefire Inc)
Access to Information. (a) From Until the date hereof until Closing, each of the Closing DateSellers and each of the Shareholders will furnish the Buyer and its employees, Seller will (i) giveofficers, accountants, attorneys, agents, investment bankers and other authorized representatives with all financial, operating and other data and information concerning the Business, commitments and properties of the Sellers as the Buyer shall from time to time reasonably request and will cause each Company afford the Buyer and each Subsidiary to giveits employees, Buyerofficers, its counselaccountants, financial advisorsattorneys, auditors agents, investment bankers and other authorized representatives reasonable access to the Sellers' offices, properties, books books, records, contracts and records documents and will be given the opportunity to ask questions of, and receive answers from, representatives of Sellerthe Sellers with respect to the Transferred Assets. As part of its investigation, each Company the Buyer shall have the right (subject to any required consent from an owner of the Real Property) to conduct environmental assessments of the Transferred Assets, including soil and groundwater sampling, as it deems appropriate. No investigations by the Buyer or its employees, representatives or agents shall reduce or otherwise affect the obligation or liability of any of the Sellers or any of the Shareholders with respect to any representations, warranties, covenants or agreements made herein or in any exhibit, schedule or other certificate, instrument, agreement or document, including the Disclosure Schedule, executed and delivered in connection with this Agreement. Each of the Sellers and each Subsidiary relating to of the BusinessShareholders will cooperate with the Buyer and its employees, (ii) furnishofficers, and will cause each Company and each Subsidiary to furnishaccountants, to Buyerattorneys, its counsel, financial advisors, auditors agents 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall preparation of any documents or other materials that may be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityGovernmental Entity.
(b) On Each party hereto agrees to hold in confidence all, and after not to disclose to others for any reason whatsoever, any non-public information received by it or its representatives from the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred parties hereto in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings transactions contemplated by the Commitment Lettersthis Agreement except (i) as required by law; (ii) for disclosure to officers, includingdirectors, without limitation, (A) assisting in the preparation employees and representatives of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business party as may be reasonably requested necessary in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors transactions contemplated hereby or as necessary to the operation of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence such party's business; and (Eiii) providing reasonable assistance with respect for information that becomes publicly available other than through such party. If the transactions contemplated by this Agreement are not consummated, each party hereto will return to the review other parties hereto all non-public documents and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Sellerother material obtained from such other parties hereto, the Companies and all copies, summaries and extracts thereof, or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyercertify to such other party hereto that such information has been destroyed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Weatherford International LTD)
Access to Information. (a) From the date hereof of this Agreement until the Closing Dateearlier of the Effective Time or the termination of this Agreement, Seller will upon reasonable notice and subject to applicable Laws relating to the exchange of information, ANB and PBF shall, and shall cause each of their respective Subsidiaries to, afford to the officers, employees, accountants, counsel and other representatives of the other access to all its properties, books, contracts, commitments and records and, during such period, each of ANB and PBF shall, and shall cause each of their respective Subsidiaries to, make available to the other (i) givea copy of each report, and will cause each Company and each Subsidiary to giveschedule, Buyer, its counsel, financial advisors, auditors registration statement and other authorized representatives reasonable access document filed or received by it during such period pursuant to the officesrequirements of the Securities Laws or federal or state banking Laws (other than reports or documents which such Party is not permitted to disclose under applicable Law, properties, books in which case such Party shall notify the other Party of the nondisclosure and records the nature of Seller, each Company such information) and each Subsidiary relating to the Business, (ii) furnishalso other information concerning its business, properties and personnel as the other party may reasonably request. All information furnished by ANB to PBF or its representatives pursuant hereto shall be treated as the sole property of ANB and, if the Merger shall not occur, PBF and its representatives shall return to ANB all of such written information and all documents, notes, summaries or other materials containing, reflecting or referring to, or derived from, such information. PBF shall, and will shall use its commercially reasonable efforts to cause each Company its representatives to, keep confidential all such information, and each Subsidiary shall not directly or indirectly use such information for any competitive or other commercial purpose. The obligation to furnish, keep such information confidential shall continue for five years from the date the proposed Merger is abandoned and shall not apply 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitationi) any Phase I environmental investigations relating to properties used information which (x) was already in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access PBF’s possession prior to the Closing Date disclosure thereof by ANB; (y) was then generally known to personnel records the public; or (z) was disclosed to PBF by a third party not bound by an obligation of any Company confidentiality, or any Subsidiary relating (ii) disclosures made as required by Law. All information furnished by PBF or its Subsidiaries to individual performance ANB or evaluation recordsits representatives pursuant hereto shall be treated as the sole property of PBF and, medical histories if the Merger shall not occur, ANB and its representatives shall return to PBF all of such written information and all documents, notes, summaries or other information which in Seller's good faith opinion is sensitive materials containing, reflecting or the disclosure of which could subject any Company referring to, or any Subsidiary to risk of liability.
(b) On derived from, such information. ANB shall, and after the Closing Date, Seller will afford promptly to Buyer and shall use 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using commercially reasonable efforts to prepare cause its representatives to, keep confidential all such information, and deliver shall not directly or indirectly use such financial information for any competitive or other commercial purpose. The obligation to keep such information confidential shall continue for five years from the date the proposed Merger is abandoned and statistical shall not apply to (i) any information relating which (x) was already in ANB’s possession prior to the Business disclosure thereof by PBF or any of its Subsidiaries; (y) was then generally known to the public; or (z) was disclosed to ANB by a third party not bound by an obligation of confidentiality, or (ii) disclosures made as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors required by Law. No investigation by either of the Companies available for due diligence meetings parties or their respective representatives shall affect the representations and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to warranties of the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerother set forth herein.
Appears in 1 contract
Access to Information. (a) From the date hereof until of this Agreement to --------------------- the Closing DateClosing, Seller will (i) givewill, and will cause each Company the Companies to (i) give Buyer and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives Representatives reasonable access to all personnel, books, records, offices and other facilities and properties of the offices, properties, books Companies and records of Seller, each the Company and each Subsidiary relating to the BusinessSubsidiaries, (ii) furnish, permit Buyer to make such inspections thereof as Buyer may reasonably request and will (iii) cause each Company and each Subsidiary its officers to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives furnish Buyer with such financial and operating data and other information relating (other than detailed information with respect the identity, address and social security number of nurses and nurse-practitioner personnel of the Companies and the Company Subsidiaries) with respect to the Business as such Persons may reasonably request business and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation properties of the BusinessCompanies and the Company Subsidiaries as Buyer may from time to time reasonably request; provided, including (without limitation) however, that any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section such access shall be -------- ------- conducted at a reasonable time and in such a manner as not to interfere unreasonably with the conduct operation of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Companies; provided further that 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer authorized Representatives shall not unreasonably interfere contact or hold discussions with the conduct of the business of Seller. Buyer shall bear all of the outcustomers, suppliers or non-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors management employees of the Companies available for due diligence meetings of the Company Subsidiaries without the prior written consent of Seller, such consent not to be unreasonably withheld. All such information and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect shall be subject to the review terms and granting conditions of security interests the letter agreement dated April 7, 1998, between Parent and Seller (the "Confidentiality Agreement"). Notwithstanding anything to the contrary in collateral for this Agreement, neither the Debt FinancingsCompanies nor the Company Subsidiaries shall be required to disclose any information to Buyer, Parent or their authorized Representatives if doing so could violate any agreement or federal, state, local or foreign law, rule or regulation to which any of the Companies or the Company Subsidiaries is a party or to which any of them is subject. All reasonable out-of-pocket expenses incurred by SellerFollowing the Closing, neither Buyer, nor Parent will, nor will either of Buyer or Parent permit the Companies or any of the Company Subsidiaries to, engage in connection with any discussions or provide any oral or written information to any of the foregoing shall be paid plaintiffs or reimbursed promptly following demand thereforany other persons (or their counsel or representatives) in any of the matters referred to in Section 5.10 of Seller Disclosure Schedule, by Buyerunless Buyer and Parent have received the prior written consent of Seller or unless Buyer or Parent is compelled to do so as a matter of law.
Appears in 1 contract
Samples: Stock Purchase Agreement (Medical Resources Inc /De/)
Access to Information. (a) From To the date hereof until extent permitted by applicable law, the Closing DateCompany shall (and shall cause each of its Subsidiaries to) afford to the officers, Seller will employees, accountants, counsel and other representatives of Reitco, access, at reasonable times during the period prior to the Effective Time, to all of its and its Subsidiaries' properties, books, contracts, commitments and records (including any Tax Returns or other Tax related information pertaining to the party providing such information and its Subsidiaries) as they shall require. During such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to Reitco (i) givea copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws and (ii) all other information concerning its business, properties and personnel as such party may reasonably request and shall make its officers, employees, accountants, financial advisors, counsel and other representatives reasonably available for consultation with Reitco. Without limiting the generality of the foregoing, the Company will, and will cause each of its respective Subsidiaries to, afford Reitco and Opco and their respective officers, employees, counsel and other advisors and representatives with access to conduct such investigations and inquiries as Reitco and Opco may reasonably deem necessary or desirable and to otherwise assist in such investigations and inquiries.
(b) To the extent permitted by applicable law, each of Reitco and Opco shall (and shall cause each of their respective Subsidiaries to) afford to the officers, employees, accountants, counsel and other representatives of the Company, access, at reasonable times during the period prior to the Effective Time, to all of its and its Subsidiaries' properties, books, contracts, commitments and records as they shall require. During such period, each of Reitco and Opco shall (and shall cause each of their respective Subsidiaries to) furnish promptly to the Company (i) a copy of each report, schedule, registration statement and each Subsidiary other document filed or received by it during such period pursuant to givethe requirements of federal securities laws and (ii) all other information concerning its business, Buyerproperties and personnel as such party may reasonably request and shall make its officers, its counselemployees, accountants, financial advisors, auditors counsel and other authorized representatives reasonable access to reasonably available for consultation with the officesCompany. Without limiting the generality of the foregoing, properties, books Reitco and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishOpco will, and will cause each of their respective Subsidiaries to, afford the Company and each Subsidiary to furnishits officers, 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 other advisors of Seller and representatives with access to conduct such investigations and inquiries the Company may reasonably deem necessary or any Company or any Subsidiary desirable and to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted otherwise assist in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On investigations and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoinginquiries.
(c) Sellers Each party will hold any such information which is nonpublic in confidence in accordance with the provisions of the existing confidentiality agreement between the Company and Reitco (the Companies "Confidentiality Agreement"). By executing this Agreement the Company, Reitco and Opco agree to provide such cooperation as may that Opco shall be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated bound by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda terms and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors conditions of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerConfidentiality Agreement as if it were an original party thereto.
Appears in 1 contract
Samples: Merger Agreement (Meditrust Corp)
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) givethe Company shall, and will shall cause each its Subsidiaries to, make its management personnel reasonably available to Purchaser and its representatives and, subject to and in compliance with any obligations of confidentiality or non-disclosure provided by applicable Law or contained in any Contracts to which the Company or its Subsidiaries is a party or by which it is bound (provided that the Company shall use its commercially reasonable efforts to put in place an arrangement to enable the provision of reasonable access without violating such obligations or Law), provide Purchaser and each Subsidiary to giveits accountants, Buyeremployees, its counsel, financial advisors, auditors attorneys and other authorized representatives reasonable access to, and permit such Persons to the officesreview, during normal business hours and upon reasonable prior written request, its properties, books books, Contracts, accounts, records and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishfiles, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives shall provide such financial and operating data and other information relating to the Business Purchaser and its representatives as such Persons they may reasonably request which is (a) reasonably required in connection with the transactions contemplated hereby and (iiib) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate not inconsistent with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Businessapplicable Law. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided Purchaser acknowledges that any such access by Buyer shall not unreasonably interfere with the conduct of the business none of Seller. Buyer , the Securityholders, the Company and their respective Subsidiaries or Affiliates shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree be obligated to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical Purchaser any information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors any offers or indications of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred interest received by Seller, the Companies Securityholders, the Company or their respective Affiliates or representatives from any Person other than Purchaser to acquire the Company or any Subsidiaries in connection with of its Equity Interests, properties or assets or any communications between Seller, the foregoing Securityholders, the Company or their respective Affiliates or representatives on the one hand and any such other Person on the other hand relating to such offers or indications of interest or the transactions contemplated thereby (it being understood that Seller and the Securityholders may retain all such documents, information and communications, which shall be paid the sole property of Seller and the Securityholders at all times prior to and after the Closing). In addition, Purchaser acknowledges that unless otherwise provided herein, Seller shall not be obligated to provide to Purchasers: (i) any work papers or reimbursed promptly following demand thereforsimilar materials prepared by its independent public accountants, except to the extent that such accountants agree to provide access to such work papers or similar materials upon such terms and conditions as shall be determined by Buyersuch accountants in their sole discretion, and (ii) any documents or information that are protected by the attorney-client privilege or work product doctrines if such party determines in its reasonable discretion that providing copies or access to such documents or information could give rise to a possible waiver of such privilege or doctrine (provided that the Company shall use its commercially reasonable efforts to put in place an arrangement to permit such disclosure without loss of attorney client privilege).
Appears in 1 contract
Access to Information. Other than in circumstances in which indemnification is sought pursuant to Article V (in which event the provisions of such Article V shall govern) or for matters related to provision of Tax records (in which event the provisions of the Tax Matters Agreement and Employee Matters Agreement shall govern) and subject to appropriate restrictions for Privileged Information or Confidential Information:
(a) From After the date hereof until Distribution Time, and subject to compliance with the Closing Dateterms of the Ancillary Agreements, Seller will upon the prior written reasonable request by, and at the expense of, SpinCo for specific and identified Information:
(i) givethat (x) relates to SpinCo or the Transferred Businesses, and will cause each Company and each Subsidiary to giveas the case may be, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access prior to the officesDistribution Time, propertiesor (y) is necessary for SpinCo to comply with the terms of, books and records or otherwise perform under, any Ancillary Agreement to which the Company and/or SpinCo are parties, the Company shall provide, as soon as reasonably practicable following the receipt of Sellersuch request, each appropriate copies of such Information (or the originals thereof if SpinCo has a reasonable need for such originals) in the possession or control of the Company and each Subsidiary relating or any of its Affiliates or Subsidiaries, but only to the Businessextent such items so relate and are not already in the possession or control of SpinCo; provided that, to the extent any originals are delivered to SpinCo pursuant to this Agreement or the Ancillary Agreements, SpinCo shall, at its own expense, return them to the Company within a reasonable time after the need to retain such originals has ceased; provided, further, that, such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the first anniversary of the date of this Agreement; provided further that, in the event that the Company, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 6.3) would violate any Law or Contract with a Third Party or could reasonably result in the waiver of any Privilege, the Company shall not be obligated to provide such Information requested by SpinCo;
(ii) furnishthat (x) is required by SpinCo with regard to reasonable compliance with reporting, and will cause each disclosure, filing or other requirements imposed on SpinCo (including under applicable securities laws) by a Governmental Entity having jurisdiction over SpinCo, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, the Company and each Subsidiary to furnishshall provide, to Buyeras soon as reasonably practicable following the receipt of such request, its counsel, financial advisors, auditors and other authorized representatives appropriate copies of such financial and operating data and other information relating to Information (or the Business as originals thereof if SpinCo has a reasonable need for such Persons may reasonably request and (iiioriginals) instruct in the employees, counsel and financial advisors possession or control of Seller or any the Company or any Subsidiary of its Affiliates or Subsidiaries, but only to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used extent such items so relate and are not already in the Business. Any investigation possession or control of SpinCo; provided that, to the extent any originals are delivered to SpinCo pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller Agreement or the Business. Notwithstanding Ancillary Agreements, SpinCo shall, at its own expense, return them to the foregoingCompany within a reasonable time after the need to retain such originals has ceased; provided, unless required by TUPEfurther that, Buyer in the event that the Company, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 6.3) would violate any Law or Contract with a Third Party or waive any Privilege, the Company shall not have access prior be obligated to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.provide such Information requested by SpinCo; or
(b) On After the Distribution Time, and after subject to compliance with the Closing Dateterms of the Ancillary Agreements, Seller will afford promptly upon the prior written reasonable request by, and at the expense of, the Company for specific and identified Information:
(i) that (x) relates to Buyer and matters prior to the Distribution Time, or (y) is necessary for the Company to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which the Company and/or SpinCo are parties, SpinCo shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if the Company has a reasonable need for such originals) in the possession or control of SpinCo or any of its agents reasonable access to its books of accountAffiliates or Subsidiaries, financial and other records (including accountant's work papers), information, employees and auditors but only to the extent necessary such items so relate and are not already in the possession or useful for Buyer in connection with any auditcontrol of the Company; provided that, investigation, dispute or litigation or any other reasonable business purpose relating to the Businessextent any originals are delivered to the Company pursuant to this Agreement or the Ancillary Agreements, the Company shall, at its own expense, return them to SpinCo within a reasonable time after the need to retain such originals has ceased; provided that provided, further that, in the event any such access by Buyer or the provision of any such Information (including information requested under Section 6.3) would violate any Law or Contract with a Third Party or waive any Privilege, SpinCo shall not unreasonably interfere be obligated to provide such Information requested by the Company.
(ii) that (x) is required by the Company with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on the conduct Company (including under applicable securities laws) by a Governmental Entity having jurisdiction over the Company, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, SpinCo shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if the Company has a reasonable need for such originals) in the possession or control of SpinCo or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of the business of Seller. Buyer shall bear all of Company; provided that, to the out-of-pocket costs and expenses (including attorneys' feesextent any originals are delivered to the Company pursuant to this Agreement or the Ancillary Agreements, but excluding reimbursement for general overheadthe Company shall, salaries and employee benefits) actually and reasonably incurred in connection with at its own expense, return them to SpinCo within a reasonable time after the foregoingneed to retain such originals has ceased.
(c) Sellers Each of the Company and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment LettersSpinCo shall inform their respective officers, includingemployees, without limitationagents, (A) assisting in the preparation of offering circularsconsultants, confidential information memoranda advisors, authorized accountants, counsel and rating agency presentations with respect other designated representatives who have or have access to the Debt Financings, (B) using reasonable efforts other Party’s Confidential Information or other information provided pursuant to prepare and deliver this Article VI of their obligation to hold such financial and statistical information relating to the Business as may be reasonably requested confidential in connection accordance with the Debt Financings, (C) making appropriate employees, accountants and advisors provisions of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthis Agreement.
Appears in 1 contract
Samples: Merger Agreement (10X Capital Venture Acquisition Corp. III)
Access to Information. Seller shall, and Seller shall cause the Group Companies to, afford to Purchaser and its accountants, counsel, financial advisors and other representatives, and to prospective lenders, placement agents and other financing sources and each of their respective representatives, full access, during normal business hours upon reasonable notice throughout the period prior to the Closing, to their respective properties and facilities (a) From including all real property and the date hereof until buildings, structures, fixtures, appurtenances and improvements erected, attached or located thereon), books, financial information (including working papers and data in the Closing Datepossession of the Company or any of the other Group Companies or their respective independent public accountants, internal audit reports, and “management letters” from such accountants with respect to the Company’s or the other Group Companies’ systems of internal control), Contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel of the Company and the other Group Companies as Purchaser shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the operations of the Company and the other Group Companies. Prior to the Closing, Seller will (i) giveshall, and will Seller shall cause each the Group Companies to, generally keep Purchaser informed as to all material matters involving the operations and businesses of the Company and each Subsidiary to giveof the other Group Companies. Seller shall, Buyerand Seller shall cause the Group Companies to, its counselauthorize and direct the appropriate directors, financial advisors, auditors managers and other authorized representatives reasonable access to employees of the offices, properties, books and records of Seller, each Company and each Subsidiary relating of the other Group Companies, as the case may be, to discuss matters involving the Business, (ii) furnish, operations and will cause each business of the Company and each Subsidiary to furnish, to Buyer, such Group Company with representatives of Purchaser and its counsel, financial advisors, auditors prospective lenders or placement agents and other authorized representatives such financial and operating data and other sources. All nonpublic information relating to provided to, or obtained by, Purchaser in connection with the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation transactions contemplated hereby shall be “Confidential Information” for purposes of the BusinessNondisclosure Agreement dated May 31, including (without limitation) any Phase I environmental investigations relating to properties used 2007 among Purchaser and Seller, the terms of which shall continue in force until the Business. Any investigation pursuant to this Section shall Closing; provided that Purchaser and Seller may disclose such information as may be conducted necessary in such manner connection with seeking necessary consents and approvals as not to interfere unreasonably with contemplated hereby and the conduct of the business of Seller or the BusinessFinancing. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Company and the other Group Companies shall not be required to disclose any information if such disclosure would contravene any applicable Law. No information provided to or any Subsidiaries in connection with obtained by Purchaser pursuant to this Section 7.1 shall limit or otherwise affect the foregoing shall be paid remedies available hereunder to Purchaser (including, but not limited to, Purchaser’s right to seek indemnification pursuant to Article X), or reimbursed promptly following demand thereforthe representations or warranties of, by Buyeror the conditions to the obligations of, the parties hereto.
Appears in 1 contract
Samples: LLC Membership Interest Purchase Agreement (Fushi International Inc)
Access to Information. (a) From During the date hereof period from the Agreement Date and continuing until the Closing Dateearlier of the termination of this Agreement and the Effective Time, Seller will (i) givethe Company shall afford Acquirer and its Representatives reasonable access during business hours to (A) the Company’s and each of the Subsidiaries’ properties, books, Contracts and will cause each records, (B) the Company shall use commercially reasonable efforts to make available the Named Transitional Employee, the Named Employees and any members of the finance or human resource teams of the Company and the Subsidiaries, and, with the prior consent of the Company (not to be unreasonably withheld, delayed or conditioned), any other personnel of the Company and the Subsidiaries and (C) all other information concerning the business, properties and personnel of the Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to of the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business Subsidiaries as such Persons Acquirer may reasonably request and (iiiii) instruct the employeesCompany and each of the Subsidiaries shall provide to Acquirer and its Representatives true, counsel correct and complete copies of the Company’s and each of the Subsidiaries’ (A) internal financial advisors statements, (B) Tax Returns, Tax elections and all other records and workpapers relating to Taxes, (C) a schedule of Seller any deferred intercompany gain or any loss with respect to transactions to which the Company or any Subsidiary to cooperate with Buyer in its investigation of the BusinessSubsidiaries has been a party and (D) receipts for any Taxes paid to foreign Tax Authorities.
(b) From and after the Closing, including (without limitationi) the Company shall afford the Securityholders’ Agent and its Representatives reasonable access during business hours for any Phase I environmental investigations proper purpose to (A) the Company’s and each of the Subsidiaries’ properties, books, Contracts and records and (B) all other information concerning the business, properties and personnel of the Company and each of the Subsidiaries, in each case, as the Securityholders’ Agent may reasonably request, and (ii) the Company and each of the Subsidiaries shall provide to the Securityholders’ Agent and its Representatives upon reasonable request for any proper purpose true, correct and complete copies of the Company’s and each of the Subsidiaries’ (A) internal financial statements, (B) Tax Returns, Tax elections and all other records and workpapers relating to properties used Taxes, (C) a schedule of any deferred intercompany gain or loss with respect to transactions to which the Company or any of the Subsidiaries has been a party and (D) receipts for any Taxes paid to foreign Tax Authorities; provided that any such access shall be subject to Section 5.3 and limited to information, facts or events that relate to the period occurring prior to the Effective Time.
(c) Subject to compliance with Applicable Law, from the Agreement Date until the earlier of the termination of this Agreement and the Closing, the Company shall confer from time to time as reasonably requested by Acquirer with one or more Representatives of Acquirer to discuss any material changes or developments in the Business. Any operational matters of the Company and each of the Subsidiaries and the general status of the ongoing operations of the Company and each of the Subsidiaries.
(d) No information or knowledge obtained by Acquirer during the pendency of the Transactions in any investigation pursuant to this Section 5.7 shall affect or be deemed to modify any representation, warranty, covenant, agreement, obligation or condition set forth herein.
(e) Any request for data or other information, any request for access or cooperation or any investigation pursuant to this Section 5.7 shall be made or conducted in such manner as not to (i) interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding Company, (ii) result in the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records loss of any attorney-client privilege of the Company or any Subsidiary relating to individual performance or evaluation records(in which case, medical histories or other information which the Company shall cooperate in Seller's good faith opinion is sensitive with Acquirer to enter into a joint defense or the disclosure of which could subject similar agreement to prevent such loss) or (iii) violate any Company or any Subsidiary to risk of liabilityApplicable Laws.
(bf) On and after Within five days following the Closing Agreement Date, Seller will afford promptly the Company shall deliver to Buyer and its agents reasonable access to its books of accountAcquirer one or more DVDs or other digital media evidencing the documents that were made available, financial and other records (including accountant's work papers)which shall indicate, informationfor each document, employees and auditors the date that such document was first uploaded to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingdata room.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Etsy Inc)
Access to Information. Subject to Section 6.3.2, from the date of this Agreement to the Effective Time or the earlier termination of this Agreement pursuant to Section 8.1, the Company shall, and shall instruct each Company Subsidiary and each of its and their respective directors, officers, employees, accountants, consultants, legal counsel, advisors, and agents and other representatives (collectively, “Company Representatives”) to: (a) From provide to Parent and Merger Sub and each of their respective officers, directors, employees, accountants, consultants, legal counsel, advisors, debt financing sources, agents and other representatives (collectively, “Parent Representatives,” and, each, together with each of the date hereof until Company Representatives, a “Representative”) reasonable access at reasonable times and upon reasonable prior notice to the Closing DateCompany, Seller will to the officers, employees, agents, properties, offices and other facilities of the Company or Company Subsidiary and to the books and records thereof and (b) furnish, or cause to be furnished, (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to such reasonably available information concerning the officesbusiness, properties, books Contracts, assets, liabilities, personnel and records other aspects of Seller, each the Company and each Subsidiary relating to the BusinessCompany Subsidiaries as Parent, (ii) furnish, and will cause each 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 Merger Sub or the Business as such Persons Parent Representatives may reasonably request and (iiiii) instruct to Parent, with respect to each fiscal month ending after the employeesdate of this Agreement, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation unaudited monthly consolidated balance sheets of the Business, including Company and its Subsidiaries for each fiscal month then ended and related consolidated statements of earnings and cash flows (without limitation) any Phase I environmental investigations relating which the Company shall furnish to properties used Parent substantially contemporaneously with the time such information is furnished on a monthly basis to the Company Board in the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct ordinary course of the business of Seller or the Businessbusiness). Notwithstanding the foregoing, unless neither the Company nor any Company Subsidiary shall be required by TUPE, Buyer shall not have to provide access prior to or disclose information where such access or disclosure would (a) interfere in any significant manner with the Closing Date to personnel records operation or business of any the Company or any Subsidiary relating to individual performance or evaluation recordsCompany Subsidiary, medical histories or other information which in Seller's good faith opinion is sensitive or (b) jeopardize the disclosure attorney-client privilege of which could subject any the Company or any Company Subsidiary or (c) contravene any Law, binding Contract to risk which the Company or any Company Subsidiary is party or any privacy policy applicable to the Company’s or any Company Subsidiary’s customer information, it being acknowledged that the parties shall use their reasonable best efforts (which, for the avoidance of liability.
doubt, shall not require obtaining the consent, approval or authorization of any Third Party or Governmental Entity) to cause such information to be provided in a manner that does not so interfere, jeopardize or contravene as contemplated by clauses (a), (b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerabove.
Appears in 1 contract
Samples: Merger Agreement (Guitar Center Inc)
Access to Information. (a) From and after the date hereof until the earlier of the Closing DateDate and the termination of this Agreement in accordance with its terms, Seller will (i) giveupon reasonable notice, and will cause each subject to restrictions contained in any confidentiality agreement to which any Group Company is subject, the Company shall provide to Parent and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives during normal business hours reasonable access to the offices, properties, all books and records of Sellerthe Group Companies (in a manner so as to not interfere with the normal business operations of any Group Company, each Company which may include remote access or other arrangements reasonably designed to protect the health and each Subsidiary relating safety of employees and representatives of the Group Companies as a result of COVID-19). All of such information shall be treated as confidential information pursuant to the Businessterms of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein. Notwithstanding anything to the contrary set forth in this Agreement, during the period from the date hereof until the Closing, neither the Sellers nor any of their Affiliates (including the Group Companies) shall be required to disclose to Parent or any of its representatives any (a) information (i) to the extent related to the sale or divestiture process conducted by the Sellers or their Affiliates for the Group Companies vis-à -vis any Person other than Parent and its Affiliates, or the Sellers’ or their Affiliates’ (or their representatives’) evaluation of the business of the Group Companies in connection therewith, including projections, financial and other information relating thereto, (ii) furnishif doing so would violate any Contract or Law to which any Seller or any of its Affiliates (including the Group Companies) is a party or is subject or which it reasonably determined upon the advice of counsel would reasonably be expected to result in the loss of the ability to successfully assert attorney-client and work product privileges (provided, however, that the Parties shall cooperate in good faith to develop substitute arrangements that would not reasonably be expected to so result in the loss of attorney-client privilege or violation of applicable Law and the Sellers shall use commercially reasonable efforts to obtain any consent or waiver necessary from the Person to whom any applicable contractual confidentiality obligation is owed), (iii) if the Sellers or any of their Affiliates, on the one hand, and will cause each Company Parent or any of its Affiliates, on the other hand, are adverse parties in a litigation and each Subsidiary such information is reasonably pertinent thereto, or (iv) if the Sellers reasonably determine upon the advice of counsel that such information should not be so disclosed due to furnishits competitively sensitive nature, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other or (b) any information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller Taxes or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations Tax Returns other than information relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior solely to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityGroup Companies.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Equity Purchase and Merger Agreement (ManpowerGroup Inc.)
Access to Information. (a) From the date hereof until the First Closing Date, Seller the Issuer will (i) give, furnish to each Purchaser and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business Issuer and its Subsidiaries as such Persons may reasonably request and (iiiii) instruct the its officers, employees, counsel counsel, independent accountants and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer such Purchaser and its authorized representatives in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the BusinessIssuer and its Subsidiaries. Any investigation pursuant to this Section shall be conducted in such a manner as that does not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityIssuer and its Subsidiaries.
(b) On and after After the First Closing Date, Seller will afford promptly for so long as the Purchasers, in the aggregate, own 20% of the Series D Shares issued to Buyer the Purchasers at the Closings, the Purchasers shall be entitled to (i) receive, within 90 days of the issuer's financial year end, audited annual financial statements, and its agents receive within 45 and 30 days of the relevant respective periods, unaudited quarterly and monthly financial statements, (ii) receive all information made available to shareholders of the Issuer or members of the Board of Directors, in each case, at the same time as such materials are distributed to the shareholders or directors, as the case may be, (iii) designate up to two persons who shall be entitled to observation rights at all meetings of the Issuer's Board of Directors, (iii) meet on a quarterly basis with members of senior management, (v) receive copies of management reports, and (vi) have reasonable access to its books of account, financial and other records (including accountantthe Issuer's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingoutside auditors.
(c) Sellers Each Purchaser agrees that any nonpublic information furnished to such Purchaser pursuant to this Section 5.01 shall be deemed confidential information and shall not be used by it as the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting basis for any market transactions in the preparation securities of offering circulars, confidential the Issuer unless and until such information memoranda and rating agency presentations with respect is made generally available to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerpublic.
Appears in 1 contract
Samples: Securities Purchase Agreement (United Shipping & Technology Inc)
Access to Information. (a) From Between the date hereof until and the Closing DateEffective Time, Seller will (i) givethe Company will, upon reasonable request, give Parent and will cause each its authorized representatives and Persons providing or committed or proposing to provide the Company or Parent with financing and each Subsidiary their representatives, reasonable access during normal business hours to giveemployees, Buyerplants, its counseloffices, financial advisors, auditors warehouses and other authorized representatives reasonable access facilities and properties and to the offices, properties, all books and records (including Tax Returns and work papers of Sellerthe Company’s independent auditors, each when available and analytical records and methods) of the Company and each Subsidiary relating its Subsidiaries, will permit Parent and its authorized representatives to make such inspections (including any physical inspections or soil or groundwater investigations) as they may reasonably request (including to allow Parent to assess the Business, (iipotential for unapproved or unintended events in products offered or sold by the Company) furnish, and will cause each instruct the officers and employees of the Company and each Subsidiary those of its Subsidiaries to furnish, furnish to Buyer, Parent and its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information with respect to the business and properties of the Company and any of its Subsidiaries (including information relating to vendors, growers, customers and product quality) as Parent may from time to time reasonably request; provided, that the Business as Company shall not be required to provide any such Persons may reasonably request and (iii) instruct information if the employees, counsel and financial advisors of Seller or any Company or any Subsidiary Person receiving such information is not subject to cooperate with Buyer in its investigation a confidentiality agreement for the benefit of the BusinessCompany; provided, including (without limitation) any further, that in the event Parent or its authorized representatives or agents elect to prepare Phase I environmental investigations relating site assessments, equivalent analyses, or any other reports analyzing potential environmental, human health, or safety issues or liabilities based on the books and records of the Company, or access to properties used in the BusinessCompany’s employees, plants, etc., Parent shall promptly provide to the Company copies of any such reports (when executed and delivered), including cost estimates (if any). Any investigation All information obtained by Persons pursuant to this Section 6.5(a) shall be conducted kept confidential in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoingaccordance with, unless required by TUPE, Buyer and shall not have access prior otherwise be subject to the Closing Date terms of, the confidentiality letter agreement, dated October 13, 2004, from the Parent to personnel records of any the Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or and Axxxxxx Xxxx Xxxxx (the disclosure of which could subject any Company or any Subsidiary to risk of liability“Confidentiality Agreement”).
(b) On and after the Closing Date, Seller 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 Prior to the extent necessary or useful for Buyer in connection with any auditEffective Time, investigationthe Company shall, dispute or litigation or any other reasonable business purpose relating to no later than 30 days following the Business; provided that any such access by Buyer shall not unreasonably interfere with end of each month and 45 days following the conduct end of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' feeseach quarter, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial to Parent upon completion the balance sheet, income statement and statistical information relating to the Business as may be reasonably requested statement of cash flows prepared in connection accordance with the Debt Financings, (C) making appropriate employees, accountants and advisors GAAP of the Companies available Company for due diligence meetings each month ended between the date of this Agreement and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Monsanto Co /New/)
Access to Information. (a) From the date hereof until the Closing DateClosing, upon reasonable notice, Seller will shall and shall cause the Division and its respective officers, directors, employees, agents, representatives, accountants and counsel to: (i) giveafford the officers, employees and will cause each Company and each Subsidiary to giveauthorized agents, Buyeraccountants, its counsel, financial advisorsFinancing Sources and representatives of Purchaser reasonable access, auditors and other authorized representatives reasonable access during normal business hours, to the offices, properties, plants, other facilities, books and records of Seller, each Company the Division and each Subsidiary of Seller relating to the BusinessDivision and to those officers, directors, employees, agents, accountants and counsel of Seller who have any knowledge relating to the Division , and (ii) furnishfurnish to the officers, employees and will cause each Company and each Subsidiary to furnishauthorized agents, to Buyeraccountants, its counsel, financial advisors, auditors Financing Sources and other authorized representatives of Purchaser such additional financial and operating data and other information relating regarding the Acquired Assets (or legible copies thereof) as Purchaser may from time to the Business as such Persons may time reasonably request request, and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior furnish to the Closing Date to personnel records officers, employees and authorized agents, accountants, counsel, Financing Sources and representatives of Purchaser such audited and unaudited financial statements and any Company or any Subsidiary relating to individual performance or evaluation records, medical histories other financial or other information which in Seller's good faith opinion is sensitive or other information necessary for the disclosure preparation by Purchaser of which could subject any Company documents required for financing the purchase of the Acquired Assets (or any Subsidiary legible copies thereof) to risk of liabilitythe extent such financial or other information currently exists or can be obtained without unreasonable effort and expense.
(b) On and In order to facilitate the resolution of any claims made by or against or incurred by Purchaser or Seller after the Closing DateDate or for any other reasonable purpose, for a period of five (5) years following the Closing, Seller will and Purchaser shall (i) retain the books and records in their possession which relate to the Acquired Assets and the business of the Division for periods prior to the Closing and (ii) upon reasonable notice, afford promptly to Buyer and its agents reasonable access to its books of account, financial and other records (including accountant's work papers), informationthe officers, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct authorized agents and representatives of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses other party reasonable access (including attorneys' feesthe right to make photocopies), but excluding reimbursement for general overheadduring normal business hours, salaries to such books and employee benefits) actually and reasonably incurred in connection with the foregoingrecords.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Purchase Agreement (Gti Corp)
Access to Information. (a) From During the date hereof period commencing on the Agreement Date and continuing until the Closing Dateearlier of the termination of this Agreement in accordance with Section 7.1 or the Effective Time, Seller will (i) givethe Company shall use its commercially reasonable efforts to afford Parent and its accountants, and will cause each Company and each Subsidiary to giveinvestment bankers, Buyer, its counsel, financial advisors, auditors counsel and other authorized representatives representatives, reasonable access during business hours to (A) all of the properties, books, Contracts and records (including but not limited to information regarding the Company's capitalization (including Company options and Company RSUs) and access to the offices, properties, books and records Company's transfer agent) of Seller, each the Company and each Subsidiary relating to its Subsidiaries, and (B) all other information concerning the Businessbusiness, results of operations, product development efforts, properties (tangible and intangible, including Intellectual Property) and personnel of the Company or any of its Subsidiaries as Parent may reasonably request, and (ii) furnishthe Company shall, promptly upon request, provide to Parent and will cause each Company and each Subsidiary to furnishits accountants, 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 employeesinvestment bankers, counsel and other representatives true, correct and complete copies of the Company's and its Subsidiaries' (A) if otherwise generated by the Company, internal financial advisors statements and documentation regarding internal controls, (B) Tax Returns, Tax elections and all other records and workpapers relating to Taxes, (C) a schedule of Seller or any deferred intercompany gain with respect to transactions to which the Company or any Subsidiary of its Subsidiaries has been a party, (D) receipts for any Taxes paid to foreign Tax Authorities and (E) the Company's proxy solicitors in connection with obtaining the Company Shareholder Approval (including customary updates regarding the status of the vote), provided, however, that Company may restrict the foregoing access to the extent that any Legal Requirement applicable to Company or any of its Subsidiaries or the maintenance of any attorney-client privilege requires that such party restrict or prohibit access to any such properties or information; provided, further, that with respect to any documents or other information subject to the attorney-client privilege, the Company shall reasonably cooperate with Buyer in Parent to develop procedures (such as a common legal interest agreement) to allow such documents and information to be shared with Parent and its investigation advisors without waiving such attorney-client privilege.
(b) Promptly upon request by Parent, the Company shall provide to Parent all of the Businessinformation with respect to Company Options and Company RSUs, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any form maintained by Equity Edge, that is customarily and reasonably required to enable Parent to transfer such information to Parent's database.
(c) No information or knowledge obtained in any investigation pursuant to this Section 5.4 shall affect or be conducted in such manner as not deemed to interfere unreasonably with modify any representation or warranty contained herein or the conduct conditions to the obligations of the business of Seller or parties hereto to consummate the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityMerger.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Synplicity Inc)
Access to Information. (ai) From the date hereof until the Closing Date, Seller will (i) give, shall and will shall cause each the Company and each Subsidiary to giveits Subsidiaries to, (a) afford Buyer, Buyer’s Representatives, Buyer’s potential financing sources and their respective Representatives full and free access, during normal business hours and upon reasonable notice, to and the right to inspect all of the Real Property, properties, assets, premises, books and records, Material Contracts and other documents and data related to the Company and its Subsidiaries; (b) furnish Buyer, Buyer’s Representatives, Buyer’s potential financing sources and their respective Representatives with such financial, operating and other data and information related to the Company and its Subsidiaries as they may reasonably request; (c) cooperate with Buyer, Buyer’s Representatives, Buyer’s potential financing sources and their respective Representatives in their investigation of the Company, its counsel, financial advisors, auditors operations and other authorized representatives the operations of any of its Subsidiaries; (d) provide reasonable access to the officesproperties, propertiesassets, premises, books and records of Seller, each the Company and each Subsidiary relating its Subsidiaries as necessary for transitional purposes; and (e) provide reasonable access to representatives of the Business, (ii) furnish, International Union of Operating Engineers and will cause each Company its local 351 and each Subsidiary to furnish, to Buyerkey employees of the Company, its counsel, financial advisors, auditors Subsidiaries 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 Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the BusinessAffiliates. Any investigation investigation, information request or transition planning conducted pursuant to this Section 4.2(a)(i) shall be conducted in such a manner as not to interfere unreasonably with the conduct operation of the business of the Company, Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records any of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitytheir respective Subsidiaries.
(bii) On Buyer’s right to enter onto the Real Property shall be at Buyer’s sole risk and expense. Other than claims of gross negligence or willful misconduct, Buyer waives and releases all claims against Seller, the Company and their respective Affiliates, directors, officers, employees and agents, for any injury to or death of any persons or damage to any property as a result of (i) the exercise of any inspection right granted to Buyer or (ii) the activities performed by Buyer, Buyer’s Representatives, Buyer’s potential financing sources and their respective Representatives pursuant to Section 4.2(a)(i); and Buyer shall release, defend, indemnify and hold harmless Seller, the Company and their respective Affiliates, directors, officers, employees and agents, from and against any losses, claims, Liens or other encumbrances for any injury to or death of any persons or damage to any property occurring in, on or about the Real Property as a result of such exercise of rights herein granted or activities undertaken by Buyer, Buyer’s Representatives, Buyer’s potential financing sources and their respective Representatives. For avoidance of doubt, the indemnity set forth in this Section 4.2(a)(ii) shall not be subject to the Indemnification Threshold, the De Minimis Threshold or the Cap Amount.
(iii) During the period from the date hereof through the Closing Date, within thirty (30) days after the end of each calendar month beginning with the calendar month ending October 31, 2011, Seller shall or shall cause the Company to, furnish to Buyer an unaudited monthly consolidated balance sheet of the Company as of the end of the month then ended and related consolidated statements of income, changes in equity and cash flows for such month and for the period from January 1, 2011, in each case prepared in accordance with GAAP applied on a basis consistent with prior periods, with the exception that no notes need be attached to such statements.
(iv) As promptly as practicable after the Signing Date, Seller shall or shall cause the Company to furnish to Buyer an unaudited consolidated balance sheet of the Company as of September 30, 2011 and related statements of income, changes in equity and cash flow for the nine (9) months ended September 30, 2011 and September 30, 2010, prepared in accordance with GAAP applied on a basis consistent with prior periods. If the Closing has not occurred on or prior to February 12, 2012, within forty-five (45) days of such date, Seller shall or shall cause the Company to furnish to Buyer an audited consolidated balance sheet of the Company as of December 31, 2011 and related statements of income, changes in equity and cash flows for the twelve (12) months ended December 31, 2011, December 31, 2010 and December 31, 2009.
(v) For a period of five (5) years after the Closing Date, Seller will afford promptly to and its Affiliates shall provide Buyer Parent and Buyer and its agents their Representatives reasonable access during regular business hours and upon reasonable prior notice to its books of account, financial and other all business records (including accountant's work papers), information, employees and auditors relating to periods prior to the extent necessary Closing Date if reasonably required by Buyer or useful for Buyer the Company in connection with any audit, investigation, dispute or third party litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circularsany financial statements that include the financial results of all or part of the Company, confidential information memoranda and rating agency presentations with respect its Subsidiaries or their businesses or operations for any period prior to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerClosing.
Appears in 1 contract
Access to Information. (a) From Prior to the date hereof until the Closing DateClosing, Seller will (i) giveshall cause the ACRE Companies to afford the Representatives of Buyer reasonable access, during normal business hours, upon reasonable advance written notice and will cause each Company and each Subsidiary in a manner so as not to giveunreasonably interfere with the normal business operations of the Business, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the officesofficers, employees, properties, offices and other facilities of the Business and the books and records thereof, including loan files, computer files, retrieval programs and similar documentation, which, for the avoidance of Sellerdoubt, each Company includes all Tax Returns, Tax work papers, and each Subsidiary relating other information used to prepare Tax Returns to the extent all of such Tax Returns, Tax work papers, and other information relate solely to the ACRE Companies and do not relate to Seller or an Affiliate of Seller (other than the ACRE Companies or in connection with Ares Affiliate Loans), and shall furnish or cause to be furnished to Buyer with such financial, operating and other data and information with respect to the Business, as Buyer, through its Representatives, may reasonably request; provided that (a) Buyer is responsible, pursuant to the terms of the Confidentiality Agreement, for use and disclosure of any such information obtained by its Representatives from Seller, the ACRE Companies or their respective Affiliates or any of the foregoing’s respective Representatives; (b) none of Seller, the ACRE Companies or any of their respective Affiliates or any of the foregoing’s respective Representatives shall be required to provide access to any information or documents which would, in the reasonable judgment of Seller, (i) breach any Contract with any Person, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation constitute a waiver of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories attorney-client or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred privilege held by Seller, the ACRE Companies or any Subsidiaries in connection with of their respective Affiliates or any of the foregoing shall be paid foregoing’s respective Representatives, or reimbursed promptly following demand therefor, by Buyer.(iii) otherwise violate any applicable Laws;
Appears in 1 contract
Samples: Purchase and Sale Agreement (Ares Commercial Real Estate Corp)
Access to Information. (a) From Upon reasonable notice and subject to the date hereof until matters set forth in the Closing DateOrchard Disclosure Schedule and the DMGI Disclosure Schedule and to all antitrust laws, Seller will each of DMGI and the Orchard, for the purposes of verifying the representations and warranties of the other and preparing for the Merger and the other matters contemplated by this Agreement, shall, and shall cause each of their respective Subsidiaries to, afford to the officers, employees, accountants, counsel and other representatives of the other party, access, during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, commitments and records, and, during such period, each of DMGI and the Orchard shall, and shall cause their respective Subsidiaries to, make available to the other party (i) givea copy of each report, and will cause each Company and each Subsidiary to giveschedule, Buyer, its counsel, financial advisors, auditors registration statement and other authorized representatives reasonable access document filed or received by it during such period pursuant to the officesrequirements of federal securities laws (other than reports or documents which DMGI or the Orchard, propertiesas the case may be, books is not permitted to disclose under applicable law) and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and all other information relating to the Business concerning its business, properties and personnel as such Persons party may reasonably request and request. Neither DMGI nor the Orchard nor any of their respective Subsidiaries shall be required to provide access to or to disclose information where (iiix) instruct such access or disclosure would violate or prejudice the employeesrights of DMGI’s or the Orchard’s, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation as the case may be, customers, (y) jeopardize the attorney-client privilege of the Businessinstitution in possession or control of such information or (z) contravene any law, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 rule, regulation, order, judgment, decree, fiduciary duty or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access binding agreement entered into prior to the Closing Date to personnel records date of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which in Seller's good faith opinion is sensitive or the disclosure restrictions of which could subject any Company or any Subsidiary to risk of liabilitythe preceding sentence apply.
(b) On Each of DMGI and after the Closing Date, Seller will afford promptly Orchard shall hold all information furnished by or on behalf of the other party or any of such party’s Subsidiaries or representatives pursuant 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 Section 6.2(a) in confidence to the extent necessary or useful for Buyer required by, and in connection with any auditaccordance with, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct provisions of the business of Seller. Buyer shall bear all of confidentiality agreement, dated December 8, 2006, between DMGI and the out-of-pocket costs and expenses Orchard (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing“Confidentiality Agreement”).
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested No investigation by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors either of the Companies available for due diligence meetings parties or their respective representatives shall affect the representations and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to warranties of the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerother set forth herein.
Appears in 1 contract
Access to Information. From and after the Effective Time, Parent shall (a) From and shall cause the date hereof until the Closing Date, Seller will (i) give, and will cause each Company Surviving Corporation and each Subsidiary to give, Buyer, of its counsel, financial advisors, auditors Subsidiaries and other authorized Affiliates to), during normal business hours and upon reasonable notice, make available and provide each Securityholder and their respective representatives reasonable (including, without limitation, counsel and independent auditors) with access to the officesfacilities and properties of the Surviving Corporation and each of its Subsidiaries and to all information, propertiesfiles, books documents and records of Seller, each Company (written and each Subsidiary computer) relating to the BusinessSurviving Corporation and its Subsidiaries or any of their businesses or operations for any and all periods prior to and including the Closing Date that they may require with respect to any reasonable business purpose (including, (iiwithout limitation, any Tax matter) furnishor in connection with any claim, dispute, action, cause of action, investigation or proceeding of any kind by or against any Person, and will shall (and shall cause each Company the Surviving Corporation and each Subsidiary to furnish, to Buyer, of its counsel, financial advisors, auditors Subsidiaries and other authorized Affiliates) cooperate fully with such Securityholders and their respective representatives such financial (including counsel and operating data independent auditors) in connection with the foregoing, at the sole cost and expense of Parent, the Surviving Corporation and its Subsidiaries and other information relating Affiliates, as applicable, including, without limitation, by making tax, accounting and financial personnel and other appropriate employees and officers of the Surviving Corporation and each of its Subsidiaries available to the Business as such Persons may reasonably request Securityholders and their respective representatives (iii) instruct the employees, including counsel and financial advisors of Seller or independent auditors), with regard to any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the reasonable business of Seller or the Businesspurpose. Notwithstanding the foregoing, unless Parent shall not be required to (and shall not be required to cause the Surviving Corporation and each of its Subsidiaries and other Affiliates to) grant access or furnish information to Securityholders and their representatives to the extent that such access or disclosure would violate or prejudice the rights of its customers, would jeopardize an attorney/client or attorney work product privilege, or is prohibited by TUPE, Buyer law or an existing contract or agreement. the Securityholders shall not have access prior to the Closing Date to personnel records of any Company the Surviving Corporation or any Subsidiary of its Subsidiaries relating to individual performance or evaluation records, medical histories or other information which that in Seller's Parent’s good faith opinion is sensitive or the disclosure of which could subject any Company the Surviving Corporation or any Subsidiary of its Subsidiaries to risk of liability.
(b) On ; provided that the Securityholders shall not be prohibited from accessing such information pursuant to a valid court order. In addition, the Company shall use its reasonable best efforts to cause its auditors, at Parent’s expense, to furnish Parent and after Merger Sub and their financing sources all financial statements, pro forma financial statements and other financial data and financial information of the Closing Date, Seller will afford promptly to Buyer Company and its agents reasonable access to its books of accountSubsidiaries, including all financial statements and financial and other records data of the type required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities, and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act (including accountant's work paperspro forma financial information), informationand other documents required to satisfy any customary negative assurance opinion, employees to consummate a financing, together with customary consents and comfort letters by auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingCompany.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Zayo Group LLC)
Access to Information. (a) From During the date hereof until Pre-Closing Period, upon reasonable prior notice, the Closing DateSeller Parties shall, Seller will and shall cause the Companies to, (i) give, and will cause each Company and each Subsidiary to give, permit Buyer, its counselAffiliates and Representatives reasonable access, financial advisorsduring normal business hours, auditors and other authorized representatives reasonable access to the offices, properties, books and records records, personnel, facilities and representatives of Sellerthe Business (including those of the Seller Parties and their respective Affiliates and Representatives, in each Company and each Subsidiary relating to case, in respect of the Business, ) and (ii) furnish, furnish to Buyer and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives the Representatives of Buyer such additional financial and operating data and other information relating to regarding the Business (or true and complete copies thereof) as such Persons Buyer or its Representatives may from time to time reasonably request for purposes of consummating the Transactions and (iii) instruct preparing to operate the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of Business following the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityClosing.
(b) On Notwithstanding anything in this Agreement to the contrary,
(i) (A) in no event shall the Seller Parties, the Companies or their respective Affiliates and after Representatives be obligated to provide any (1) access or information in violation of any applicable Law, (2) information the Closing Date, Seller will afford promptly to Buyer and its agents reasonable access to its books disclosure of account, financial and other records which (based on the advice of outside legal counsel) would jeopardize any applicable privilege (including accountant's work papersthe attorney-client privilege) available to the Seller Parties, the Companies or any of their respective Affiliates relating to such information, (3) information the disclosure of which would cause the Seller Parties, the Companies or any of their respective Affiliates to breach a confidentiality obligation to which it is bound or (4) consolidated Tax Return of the Seller Parties or their Affiliates (other than the portion of such Tax Returns that relates to the Companies or the Business), information, employees and auditors to (B) the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access investigation contemplated by Buyer Section 6.02(a) shall not unreasonably interfere with the conduct any of the business normal businesses, personnel or operations of Seller. the Seller Parties, the Companies or any of their respective Affiliates or the Business; provided, that, in each case, the Seller Parties shall, and shall cause its Affiliates to, use commercially reasonable efforts to permit such access or disclosure, including by using commercially reasonable efforts to obtain any consents of third parties (including the auditors and accountants of the Seller Parties, the Companies, any of their respective Affiliates or the Business) that are necessary to permit such access or make such disclosure;
(ii) the auditors and accountants of the Seller Parties, the Companies, any of their respective Affiliates or the Business shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and, only after and if the applicable auditors and accountants so request, such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants; and
(iii) before the Closing, Buyer shall bear all not conduct, without the prior written consent of Seller Parent, which Seller Parent may withhold for any reason, any intrusive or physical environmental investigation, testing or sampling in, on, at or under any property affiliated with the out-of-pocket costs and expenses (Business or with, the Seller Parties, the Companies or any of their respective Affiliates, including attorneys' feesany sampling, but excluding reimbursement for general overheadtesting or other intrusive or physical indoor or outdoor investigation of air, salaries and employee benefits) actually and reasonably incurred surface water, groundwater, soil, building structures or materials or anything else in, on, at or in connection with any real property associated or affiliated in any way with the foregoingBusiness, the Seller Parties, the Companies or any of their respective Affiliates.
(c) Sellers and the Companies agree to provide such cooperation as may be If reasonably requested by Seller Parent, Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda shall enter into a customary and rating agency presentations reasonable joint defense agreement or common interest agreement with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors one or more of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by SellerSeller Parties, the Companies or any Subsidiaries in connection of their respective Affiliates with the foregoing shall be paid respect to any privileged information provided by such Person to Buyer, pursuant to this Section 6.02 or reimbursed promptly following demand therefor, by Buyerotherwise.
Appears in 1 contract
Samples: Stock Purchase Agreement (Investment Technology Group, Inc.)
Access to Information. (a) From Between the date hereof until and the Closing Dateconsummation of the Offer and/or Effective Time, Seller as the case may be, the Company will (i) give, give the Purchaser and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives and Persons providing or committed to provide the Purchaser with financing for the transactions contemplated hereby and their representatives, reasonable access to the all employees, plants, offices, properties, warehouses and other facilities and properties and to all books and records of Seller, each the Company and each Subsidiary relating its Subsidiaries, will permit the Purchaser to the Business, make such inspections (iiincluding any physical inspections or soil or groundwater investigations) furnish, as Purchaser reasonably request and will cause each Company the Company's officers and each Subsidiary those of its Subsidiaries to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives furnish the Purchaser with such financial and operating data and other information relating with respect to the Business as such Persons may reasonably request business and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation properties of the BusinessCompany and any of its Subsidiaries as the Purchaser may from time to time reasonably request, including (without limitation) any Phase I environmental investigations relating PROVIDED that, in each case, such access will be subject to properties used in the Business. Any investigation continuing obligations of the parties under the Confidentiality Agreement by and between Stonington Partners, Inc. and the Company dated April 24, 1998, which agreement shall survive until termination pursuant to this Section the terms thereof. The Company shall be conducted in furnish promptly to Parent and the Purchaser a copy of each report, schedule, registration statement and other document filed by it or its subsidiaries during such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior period pursuant to the Closing Date to personnel records requirements of any Company federal or any Subsidiary relating to individual performance state or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liabilityforeign securities laws.
(b) On and after Prior to the Closing Dateconsummation of the Offer, Seller will afford promptly to Buyer the Company and its accountants, counsel, agents reasonable access to its books of account, financial and other records (including accountant's work papers)representatives shall cooperate with the Purchaser by providing information about the Company which is necessary for the Purchaser and its accountants, informationagents, employees counsel and auditors other representatives to prepare the Financing Documents and such other documents and other reasonable requests with respect to such documents. Notwithstanding anything in this Agreement to the extent necessary contrary, the Purchaser may disclose, or useful for Buyer in connection with any auditcause its representatives to disclose, investigation, dispute or litigation or any other reasonable business purpose relating to and at the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct request of the business of Seller. Buyer Purchaser, the Company shall bear all of disclose information concerning the out-of-pocket costs Company and expenses (including attorneys' feesits Subsidiaries, but excluding reimbursement for general overheadand their respective businesses, salaries assets and employee benefits) actually properties, and reasonably incurred the transactions contemplated hereby, in the Financing Documents and to prospective financing sources in connection with the foregoingtransactions contemplated hereby.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From So long as Avaya and its Affiliates collectively hold at least 5% of the date hereof until outstanding shares of the Closing DateCompany's Common Stock, Seller will (i) give, and will cause each the Company and each Subsidiary shall furnish to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives Avaya such financial and operating data and other information relating with respect to the Business as such Persons may reasonably request business and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation properties of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the BusinessCompany as Avaya shall reasonably request. Any investigation pursuant to this Section The Company's costs and expenses of providing such information shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Businesspromptly reimbursed by Avaya upon request. Notwithstanding the foregoing, unless required by TUPE, Buyer the Company shall not have be obligated to, and shall not, furnish access prior to any information which the Closing Date Company, in its reasonable judgment, believes (i) to personnel records be a trade secret or competitively sensitive information; (ii) would breach a then existing confidentiality agreement between the Company and a third party; (iii) if any law, treaty, rule or regulation of any Company court or any Subsidiary relating to individual performance administrative agency restricts such access; or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or (iv) the disclosure of which could subject any such information would have a material adverse effect on the Company or any Subsidiary to risk of liability.
(b) On its subsidiaries. Avaya acknowledges and after the Closing Date, Seller agrees that Avaya will afford promptly to Buyer and its agents reasonable have access to its books material, nonpublic information concerning the Company, therefore, Avaya agrees that it will not, nor cause another person to, enter into any agreement, contract, right, or obligation, to buy, sell or trade any securities of accountthe Company based on any information provided to it hereunder which is not publicly available, financial and other records (including accountant's work papers)or provide such nonpublic information to any person under circumstances in which it is reasonably foreseeable that such person may purchase, informationsell or trade such securities resulting in a violation of the Exchange Act, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation Securities Act or any other reasonable business purpose relating applicable law. Avaya agrees, and agrees to cause its Affiliates and their respective directors, officers, employees, agents or representatives (collectively, "Representatives") to maintain the confidentiality of, and not disclose, any nonpublic information (whether oral, in writing or in any other form) furnished by the Company, or on behalf of the Company, to Avaya pursuant to this Section 2.11 (" Confidential Information"); provided, however, such Confidential Information does not include information which (i) is or becomes generally available to the Business; public other than as a result of a disclosure by Avaya or any of its respective Affiliates or Representatives, or (ii) was or becomes available to Avaya or any of its respective Affiliates or Representatives on a non-confidential basis from a source other than the Company or its Affiliates or its Representatives, provided that any such access source is not bound by Buyer shall not unreasonably interfere a confidentiality agreement with the conduct Company or its Affiliates or Representatives or otherwise prohibited from transmitting the Confidential Information by a contractual, legal or fiduciary obligation. In the event that Avaya is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, it is agreed that Avaya will provide the Company with prompt notice of each such request so that the Company may seek an appropriate protective order or other appropriate remedy, or both, or waive Avaya's compliance with this Section 2.11. It is further agreed that, if in the absence of a protective order or the receipt of a waiver of this Section 2.11, Avaya is nonetheless, in the opinion of its counsel, compelled to disclose information concerning the Company to any tribunal or else stand liable for contempt or suffer other censure or penalty, Avaya may furnish only that portion of the business Confidential Information which it is advised by its counsel is legally required to be furnished and shall exercise its reasonable commercial efforts to obtain reliable assurance that confidential treatment will be accorded such Confidential Information. The rights set forth in this Section 2.11, are solely for the benefit of Seller. Buyer shall bear all Avaya and cannot be transferred or assigned to any person without the prior written consent of the out-of-pocket costs and expenses (including attorneys' feesCompany, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingsuch consent not to be unreasonably withheld.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From and after the date hereof until the earlier of the Closing DateDate and the termination of this Agreement in accordance with its terms, upon reasonable notice, and subject to 57 115787664v1 restrictions contained in any confidentiality agreement to which any Group Company is subject, Seller will (i) give, and will cause each Company and each Subsidiary Group Company shall provide to give, Buyer, Buyer and its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, all management and senior employees and books and records of Sellerthe Group Companies (in a manner so as to not unreasonably interfere with the normal business operations of any Group Company); provided, each Company that (i) Buyer and each Subsidiary relating its representatives shall use reasonable efforts in light of the circumstances to the Business, seek such access during normal business hours and (ii) furnishSeller and its representatives shall have no obligation to provide Buyer and its representatives access to any books or records to the extent such books and records do not pertain to the business of any Group Company and, to such extent, any Group Company and its representatives are entitled to withhold access to or redact any portion of such books and records. All of such information shall be treated as confidential information pursuant to the terms of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein.
(b) Notwithstanding anything to the contrary set forth in this Agreement, during the period from the date hereof until the Closing, neither the Company nor any of its Affiliates (including the Group Companies) shall be required to disclose to Buyer or any of its representatives any (i) information (A) to the extent developed or prepared for the sale or divestiture process conducted by the Company or its Affiliates for the Group Companies vis-à-vis any Person other than Buyer and its Affiliates, or the Company’s or its Affiliates’ (or their representatives’) evaluation of the business of the Group Companies in connection therewith, including projections, financial and other information developed or prepared in connection therewith, (B) if doing so would violate any Law to which the Company or any of its Affiliates (including the Group Companies) is a party or is subject (including the HSR Act and other Antitrust Laws), or (C) which it reasonably determined upon the advice of counsel could result in the loss of the ability to successfully assert attorney client and work product privileges with respect to any Privileged Deal Communications; provided, however, that Seller and the Company shall notify Parent in the event any access or information contemplated by this clause (C) is withheld and cooperate with Parent to attempt to find a way to allow disclosure of such information to the extent doing so would not (in the reasonable judgement of Seller after consultation with counsel) reasonably be likely to result in the loss of any attorney-client privilege, or (D) if the Company or any of its Affiliates, on the one hand, and will cause each Company Parent or any of its Affiliates, on the other hand, are adverse parties in a litigation and each Subsidiary such information is reasonably pertinent thereto, or (ii) information relating to furnish, to Buyer, its counsel, financial advisors, auditors and Taxes or Tax Returns other authorized representatives such financial and operating data and other than information relating to the Business as such Persons may Group Companies required for Buyer to comply with applicable Law. Furthermore, the Company and its Affiliates shall be permitted to reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller designate any competitively sensitive material provided to Buyer or any Company or any Subsidiary to cooperate with Buyer in of its investigation of representatives under Section 6.2(a) as “Clean Team Only,” and such materials and the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section information contained therein shall be conducted handled in such manner as not to interfere unreasonably accordance with the conduct procedures established for such materials prior to the execution of the business of Seller or the Businessthis Agreement. Notwithstanding the foregoing, unless required the access contemplated by TUPE, Buyer shall not have access prior this Section 6.2 and any related activities may be limited due to the Closing Date to personnel records COVID-19 Pandemic and COVID-19 Measures (and the Company’s response thereto) and no access need be granted if the Company believes it may jeopardize the health and safety of any Company or any Subsidiary relating to individual performance or evaluation recordsemployee, medical histories independent contract or other information which in Seller's good faith opinion is sensitive or the disclosure agent of which could subject any Company or any Subsidiary to risk of liabilityGroup Company.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. During the Pre-Closing Period, the Debtors agree to provide (a) From the date hereof until the Closing DateBackstop Parties with such other material information regarding, Seller will (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to not constituting material non-public information (within the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct meaning of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' feesUnited States Federal, but excluding reimbursement for general overhead, salaries and employee benefitsstate or other applicable securities laws) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt FinancingsDebtors and their affiliates or their securities, the operations, business affairs and financial condition of the Debtors, in each case as the Backstop Parties may reasonably request from time to time and (Bb) using upon request, provide the AHG Advisors who have signed customary confidentiality agreements information (to the extent practically available) reasonably requested regarding the Company or its Subsidiaries; provided that the foregoing obligation shall not require the Company or any Debtor or any of their employees, officers, advisors or other representatives to (1) take any action or share any information which is restricted or prohibited by obligations of confidentiality binding on the Company or any Debtor, applicable Law or the rules of any applicable securities exchange (provided, that such Company or Debtor, as applicable, must only withhold the portion of such information or materials that are actually subject to such confidentiality obligations, applicable Law or rules of any applicable securities exchange, and unless otherwise restricted from doing so by any of the aforementioned, use commercially reasonable efforts to prepare and deliver provide such financial and statistical withheld information relating or materials to the Business as may be reasonably requested in connection with the Debt FinancingsAHG Advisors pursuant to a Confidentiality Agreement); provided further that, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance except with respect to Delta (as defined in the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies Restructuring Support Agreement) (or any Subsidiaries in connection with of its Related Purchasers or Ultimate Purchasers that are Affiliates) or the Debtors, the foregoing shall be paid not in any event permit any other party to this Agreement (or reimbursed promptly following demand thereforsuch party’s representatives or Affiliates) to have access to any contracts between any of the Debtors and Delta or its Affiliates, by Buyerother than the Transaction Agreements, nor (2) disclose any document or share any information over which the Company or any Debtor asserts any legal professional privilege nor waive or forego the benefit of any applicable legal professional privilege.
Appears in 1 contract
Samples: Backstop Commitment Agreement
Access to Information. (a) From and after the date hereof until the earlier of the Closing DateDate or the termination of this Agreement in accordance with Article 8, Seller will (i) giveupon reasonable notice, the Company shall provide to Purchaser and will cause each Company and each Subsidiary to giveits authorized representatives, Buyerduring normal business hours, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, all books and records of SellerBlocker Corp and the Group Companies, each Company including Tax Returns and each Subsidiary relating work papers (in a manner so as to not interfere with the normal business operations of any Group Company). All of such information provided shall be treated as confidential information pursuant to the Businessterms of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein and Purchaser agrees that it shall be bound by the Confidentiality Agreement to the same extent as FRG. Notwithstanding anything to the contrary set forth in this Agreement, during the period from the date hereof until the Closing, none of Sellers or any of their Affiliates (including the Group Companies) shall be required to disclose to Purchaser or any of their respective representatives any information (i) to the extent related to the sale or divestiture process conducted by the Sellers, the Company or their respective Affiliates for the Group Companies vis-à-vis any Person other than Purchaser and its Affiliates, or the Sellers’, the Company or their respective Affiliates’ (or their respective representatives’) evaluation of the business of the Group Companies in connection therewith, including projections, financial and other information relating thereto, (ii) furnish, if doing so would violate any applicable law (including any Health and will cause each Company Safety Measures) to which any Seller or any of their respective Affiliates (including the Group Companies) is subject or which it reasonably determined upon the advice of counsel could result in the loss of the ability to successfully assert attorney-client and each Subsidiary work product privileges; provided that the Group Companies shall use their commercially reasonable efforts to furnish, provide access to Buyer, its counsel, financial advisors, auditors any such information in a manner that does not violate any such law or compromise the ability to successfully assert attorney-client and other authorized representatives such financial and operating data and other information relating to the Business as such Persons may reasonably request and work product privileges or (iii) instruct if any Seller, the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of their respective Affiliates, on the Businessone hand, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company and Purchaser or any Subsidiary relating to individual performance or evaluation recordsof its Affiliates, medical histories or on the other information which hand, are adverse parties in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On a Claim and after the Closing Date, Seller 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 necessary any such information is reasonably relevant thereto (provided, that this clause (iii) shall in no way limit or useful for Buyer expand the rights of any Person to obtain discovery under applicable law with respect to any matter in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoinglitigation).
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing DateEffective Time and subject to the requirements of applicable Laws, Seller will the Company shall (i) give, and will cause each Company and each Subsidiary provide to give, BuyerParent, its counsel, financial advisors, auditors and other authorized representatives reasonable access during normal business hours to the offices, properties, books and records of Seller, each the Company and each Subsidiary relating to the Businessits Subsidiaries, (ii) furnish, and will cause each Company and each Subsidiary furnish to furnish, to BuyerParent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Business as such Persons persons may reasonably request (including, to the extent practicable, furnishing to Parent the financial results of the Company in advance of any filing by the Company with the SEC containing such financial results), and (iii) instruct the employees, counsel counsel, financial advisors, auditors and financial advisors other authorized representatives (other than nonemployee directors) of Seller or any the Company and its Subsidiaries to cooperate reasonably with Parent to obtain access to information concerning the Company and its Subsidiaries, as the case may be, except that nothing herein shall require the Company or any Subsidiary of its Subsidiaries to cooperate with Buyer in disclose any information that would cause a violation of any agreement to which the Company or any of its investigation Subsidiaries is a party or would cause a risk of a loss of privilege to the Business, including (without limitation) Company or any Phase I environmental investigations relating of its Subsidiaries. Such access to properties used in the Business. Any investigation information pursuant to this Section 5.2(a) shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityand its Subsidiaries.
(b) On and after the Closing Date, Seller will afford promptly Parent hereby agrees that all information provided to Buyer and it or its agents reasonable access to its books of accountcounsel, financial advisors, auditors and other records (including accountant's work papers), information, employees authorized representatives in connection with this Agreement and auditors the consummation of the transactions contemplated hereby shall be deemed to be "Confidential Information" to the extent necessary or useful for Buyer such information would be considered "Confidential Information," in connection with any auditeach case, investigationas such term is used in, dispute or litigation or and shall be treated in accordance with, the Confidentiality Agreement, dated as of February 10, 2007, between the Company and Centerbridge Associates, L.P. (the "Confidentiality Agreement") and any other reasonable business purpose relating confidentiality agreements entered into by co-investors in Parent had it been provided prior to the Businessdate of this Agreement; provided, that Parent shall be entitled to share such Confidential Information with the parties providing the Financing, prospective co-investors or limited partners of the members of Parent; provided further, however, that any such access parties providing the Financing, prospective co-investors or limited partners of the members of Parent to whom Parent provides Confidential Information shall agree in writing to be bound by Buyer the confidentiality provisions of the Confidentiality Agreement or shall not unreasonably interfere execute their own confidentiality agreements with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingCompany.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Crane James R)
Access to Information. (a) From During the period commencing on the date hereof and continuing until the earlier of the termination of this Agreement and the Closing, (i) the Company shall afford Acquiror and its accountants, counsel and other representatives, reasonable access during regular business hours to (A) all of the Company's and each of its Subsidiaries' properties, books, Contracts and records and (B) all other information concerning the business, properties and personnel of the Company or any of its Subsidiaries as Acquiror may reasonably request, and (ii) the Company shall provide to Acquiror and its accountants, counsel and other representatives true, correct and complete copies of the Company's and each of its Subsidiaries' (A) internal financial statements as and when provided to the Company's management, (B) Tax Returns, Tax elections and all other records and workpapers relating to Taxes, (C) a schedule of any deferred intercompany gain or loss with respect to transactions to which the Company or any Subsidiary has been a party, and (D) receipts for any Taxes paid to foreign Tax Authorities.
(b) Subject to compliance with applicable Legal Requirements, from the date hereof until the Closing Dateearlier of the termination of this Agreement and the Closing, Seller will (i) give, and will cause each the Company shall confer from time to time as reasonably requested by Acquiror with one or more representatives of Acquiror to discuss any material changes or developments in the operational matters of the Company and each Subsidiary to give, Buyer, of its counsel, financial advisors, auditors Subsidiaries and other authorized representatives reasonable access to the offices, properties, books and records general status of Seller, each the ongoing operations of the Company and each Subsidiary relating to the Business, of its Subsidiaries.
(iic) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other No information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or knowledge obtained in any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section 5.8 shall affect or be conducted in such manner as not deemed to interfere unreasonably with modify any representation or warranty contained herein or the conduct conditions to the obligations of the business of Seller or parties hereto to consummate the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityMerger.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Amdocs LTD)
Access to Information. Upon reasonable notice, the Company --------------------- and TMW shall each (aand shall cause each of their respective subsidiaries to) From afford to the officers, employees, accountants, counsel and other representatives of the other, reasonable access during normal business hours during the period from the date hereof until to the Closing DateEffective Time of the Merger, Seller will to all of its properties, books, contracts, commitments and records, and during such period, each of the Company and TMW shall (and shall cause each of their respective subsidiaries to) furnish promptly to the other (i) givea copy of each report, and will cause each Company and each Subsidiary to giveschedule, Buyer, its counsel, financial advisors, auditors registration statement and other authorized representatives reasonable access document filed or received by it during such period pursuant to the offices, properties, books requirements of the Exchange Act or the Securities Act (including all comment letters from the staff of the SEC) and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishall other information concerning its business, properties and personnel as such other party may reasonably request; provided, however, that notwithstanding the foregoing provisions of this Section 5.4 or any other provision of this Agreement, neither the Company nor TMW shall be required to provide to the other party any information that is subject to a confidentiality agreement and that relates primarily to a party other than the Company, TMW or any subsidiary or former subsidiary of the Company or TMW. Each of the Company and TMW agrees that it will not, and it will cause each Company and each Subsidiary to furnishits respective representatives not to, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other use any information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation obtained pursuant to this Section shall be conducted in such manner as not 5.4 for any purpose unrelated to interfere unreasonably with the conduct consummation of the business of Seller or transactions contemplated by this Agreement. The Confidentiality Agreement dated February 18, 1999 (the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents reasonable access to its books of account, financial and other records (including accountant's work papers"Confidentiality Agreement"), informationby and between the Company and TMW, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations apply with respect to information furnished by the Debt FinancingsCompany, (B) using reasonable efforts to prepare TMW and deliver such financial their respective subsidiaries and statistical information relating to representatives thereunder or hereunder and any other activities contemplated thereby. The parties agree that this Agreement and the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors transactions contemplated hereby shall not constitute a violation of the Companies available for due diligence meetings Confidentiality Agreement and for participation that the provisions hereof shall supersede all provisions of the Confidentiality Agreement in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting event of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyera conflict.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing DateClosing, Seller will (i) givethe Company shall, and will shall cause each Company of the Subsidiaries to, afford to the Purchaser and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives Advisors reasonable access to the offices, properties, books and records and Employees of Seller, each the Company and each Subsidiary during normal business hours, as the Purchaser may reasonably request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege or third-party confidentiality obligation); provided, however, that such access shall be upon reasonable notice, shall not unreasonably disrupt the Employees and operations of the Company or the Subsidiaries and shall be subject to applicable Law, provided that the Purchaser shall be permitted to conduct weekly update meetings with the senior management of the Company. All requests for access to the offices, properties, books, and records and Employees of the Company and each of the Subsidiaries relating to the Business, (ii) furnish, and will cause each Company and each such Subsidiary shall be made to furnishSellers Representatives, to Buyerwho shall be solely responsible for coordinating all such requests and all access permitted hereunder. Neither the Purchaser nor any of its Advisors shall contact any partner, its counsellender, financial advisorslessor, auditors and other authorized representatives such financial and operating data and other information relating to vendor, consultant, employee, client, customer or supplier of the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred their respective affiliates in connection with the foregoing.
(c) transactions contemplated hereby, whether in person or by telephone, mail or other means of communication, without the specific prior authorization of such Sellers Representatives, which authorization shall not be unreasonably withheld. No investigation by Purchaser prior to or after the date of this Agreement shall diminish or obviate any of the representations, warranties, covenants or agreements of the Company or the Sellers contained in this Agreement. In order that Purchaser may have full opportunity to make such physical, business, accounting and legal review, examination or investigation as it may reasonably request of the affairs of the Company and its Subsidiaries, the Company and the Companies agree Sellers shall cause the officers, employees, consultants, agents, accountants, attorneys and other representatives of the Company and its Subsidiaries to provide cooperate fully with such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested representatives in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the such review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerexamination.
Appears in 1 contract
Samples: Share Purchase Agreement (Comverse Technology Inc/Ny/)
Access to Information. (a) From To the date hereof until extent permitted by applicable law, the Closing DateCompany shall (and shall cause each of its Subsidiaries to) afford to the officers, Seller will employees, accountants, counsel and other representatives of Reitco, access, at reasonable times during the period prior to the Effective Time, to all of its and its Subsidiaries' properties, books, contracts, commitments and records (including any Tax Returns or other Tax related information pertaining to the party providing such information and its Subsidiaries) as they shall require. During such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to Reitco (i) givea copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws and (ii) all other information concerning its business, properties and personnel as such party may reasonably request and shall make its officers, employees, accountants, financial advisors, counsel and other representatives reasonably available for consultation with Reitco. Without limiting the generality of the foregoing, the Company will, and will cause each of its respective Subsidiaries to, afford Reitco and Opco and their respective officers, employees, counsel and other advisors and representatives with access to conduct such investigations and inquiries as Reitco and Opco may reasonably deem necessary or desirable and to otherwise assist in such investigations and inquiries.
(b) To the extent permitted by applicable law, each of Reitco and Opco shall (and shall cause each of their respective Subsidiaries to) afford to the officers, employees, accountants, counsel and other representatives of the Company, access, at reasonable times during the period prior to the Effective Time, to all of its and its Subsidiaries' properties, books, contracts, commitments and records as they shall require. During such period, each of Reitco and Opco shall (and shall cause each of their respective Subsidiaries to) furnish promptly to the Company (i) a copy of each report, schedule, registration statement and each Subsidiary other document filed or received by it during such period pursuant to givethe requirements of federal securities laws and (ii) all other information concerning its business, Buyerproperties and personnel as such party may reasonably request and shall make its officers, its counselemployees, accountants, financial advisors, auditors counsel and other authorized representatives reasonable access to reasonably available for consultation with the officesCompany. Without limiting the generality of the foregoing, properties, books Reitco and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishOpco will, and will cause each of their respective Subsidiaries to, afford the Company and each Subsidiary to furnishits officers, 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 other advisors of Seller and representatives with access to conduct such investigations and inquiries the Company may reasonably deem necessary or any Company or any Subsidiary desirable and to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted otherwise assist in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On investigations and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoinginquiries.
(c) Sellers Each party will hold any such information which is nonpublic in confidence in accordance with the provisions of the existing confidentiality agreement between the Company and Reitco (the Companies "Confidentiality Agreement"). By ------------------------- executing this Agreement the Company, Reitco and Opco agree to provide such cooperation as may that Opco shall be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated bound by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda terms and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors conditions of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerConfidentiality Agreement as if it were an original party thereto.
Appears in 1 contract
Access to Information. (a) From Upon reasonable notice and subject to applicable Laws relating to the date hereof until exchange of information, each party shall and shall cause each of its Subsidiaries to, afford to the Closing Dateofficers, Seller will employees, accountants, counsel and other Representatives of the other party, during normal business hours during the period prior to the Effective Times, reasonable access (including for the purpose of coordinating transition planning with employees, but not for purposes of conducting environmental site assessments) to all its and its Subsidiaries’ properties, books, contracts, commitments and records, and to its and its Subsidiaries’ officers, employees, accountants, counsel and other Representatives and, during such period, each party shall, and shall cause its Subsidiaries to, promptly make available to the other party, subject, in the case of competitively sensitive information, to any customary “clean-room” arrangements agreed between the parties, (i) givea copy of each report, and will cause each Company and each Subsidiary to giveschedule, Buyer, its counsel, financial advisors, auditors registration statement and other authorized representatives reasonable access document filed or received by it during such period pursuant to the offices, properties, books requirements of federal securities laws and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and all other information relating to concerning its business, properties and personnel as the Business as such Persons other party may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityrequest.
(b) On and after No investigation by any of the Closing Dateparties or their respective Representatives shall affect the representations, Seller will afford promptly to Buyer and its agents reasonable access to its books warranties, covenants or agreements of account, financial and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingparty set forth herein.
(c) Sellers This Section 5.7 shall not require either party or any of its Subsidiaries 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 such party would reasonably be expected to result in (i) any violation of any material contract or Law to which such party is a party or is subject or cause any privilege (including attorney-client privilege) which such party or any of its Subsidiaries 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 such party or any of its Subsidiaries, on the one hand, and the Companies agree other party or any of its Subsidiaries, on the other hand, are adverse parties in a litigation, such information being reasonably pertinent thereto; provided, that, in the cases of clause (i), the parties hereto shall cooperate in seeking to provide find a way to allow disclosure of such cooperation as information to the extent doing so (1) would not (in the good faith belief of the disclosing party (after consultation with counsel, which may be in-house counsel)) reasonably requested by Buyer be likely to result in timely obtaining the Debt Financings contemplated by violation of any such material contract or Law or reasonably be likely to cause such privilege to be undermined with respect to such information or (2) could reasonably (in the Commitment Lettersgood faith belief of the disclosing party (after consultation with counsel which may be in-house counsel)) be managed through the use of customary “clean-room” arrangements pursuant to which non-employee Representatives of the non-disclosing party shall be provided access to such information; provided, includingfurther, without limitationthat the disclosing party shall (x) notify the other party that such disclosures are reasonably likely to violate the disclosing party’s or its Subsidiaries’ obligations under any such material contract or Law or are reasonably likely to cause such privilege to be undermined, (y) communicate to the other party in reasonable detail (A) assisting the facts giving rise to such notification and (B) the subject matter of such information (to the extent it is able to do so in accordance with the foregoing proviso) and (z) in the preparation of offering circularscase where such disclosures are reasonably likely to violate such disclosing party’s or its Subsidiaries’ obligations under any material contract, confidential information memoranda and rating agency presentations use reasonable commercial efforts to seek consent from the applicable third party to any such material contract with respect to the Debt Financings, disclosures prohibited thereby (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as extent not otherwise expressly prohibited by the terms of such contract).
(d) The information provided pursuant to Section 5.7 shall be used solely for the purpose of the Transactions contemplated hereby, and unless and until the Mergers are consummated, such information shall be kept confidential by the recipient thereof in accordance with, and shall otherwise abide by and be subject to the terms and conditions of the Confidentiality Agreement, except that the information provided pursuant to Section 5.7 or portions thereof may be reasonably requested in connection with the Debt Financingsdisclosed to affiliates’ directors, (C) making appropriate officers, members, employees, accountants agents, Financing Sources and advisors of Aristotle or Plato (collectively, the Companies available “Representatives”) who (i) need to know such information for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investorsthe purpose of the transactions contemplated hereby, (Dii) providing timely access shall be advised by Aristotle or Plato, as the case may be, of this provision, (iii) agree to diligence materials and appropriate personnel hold the information provided pursuant to allow lenders and their representatives to complete all reasonably required diligence Section 5.7 as confidential and (Eiv) providing reasonable assistance agree with respect Aristotle or Plato to be bound by the review provisions hereof. If this Agreement is terminated, Aristotle and granting Plato shall and shall cause each of security interests in collateral for the Debt Financings. All reasonable out-their Representatives to, return or destroy (and certify destruction of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer) all information provided pursuant to Section 5.7.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing DateEffective Time, Seller will the Company and each of its Subsidiaries will, during normal business hours and upon reasonable advance notice, (i) givegive Parent and Merger Sub, and will cause each Company and each Subsidiary to givetheir respective Affiliates, Buyerofficers, its employees, counsel, accountants, financial advisors, auditors financing sources and other authorized agents and representatives reasonable access to the offices, properties, warehouses and other facilities and to all Contracts, internal reports, data processing files, books and records, Federal, state, local and foreign tax returns and records, commitments, books, records and affairs of Sellerthe Company, each Company and each Subsidiary relating to whether located on the Businesspremises of the Company, its Subsidiaries or at another location; (ii) furnishfurnish promptly to Parent, and will cause Merger Sub or their respective Affiliates a copy of each Company and each Subsidiary to furnishreport, to Buyerschedule, its counsel, financial advisors, auditors registration statement and other authorized representatives document filed or received by it during such financial period pursuant to the requirements of Federal securities laws or regulations; (iii) permit Parent, Merger Sub or their respective Affiliates to make such inspections as they may reasonably require; (iv) cause its officers to furnish Parent, Merger Sub and their respective Affiliates such existing financial, operating and product data and other information relating with respect to the Business business and properties of the Company and its Subsidiaries as such Persons Parent, Merger Sub or their respective Affiliates from time to time may reasonably request request, including financial statements and schedules; (v) allow Parent, Merger Sub and their respective Affiliates the opportunity to interview such employees and other personnel of the Company and its Subsidiaries; and (iiivi) otherwise instruct and cause the Company’s and its Subsidiaries’ employees, accountants, counsel and financial advisors of Seller or any Company or any Subsidiary to fully cooperate with Buyer Parent and Merger Sub in its their investigation of the Businessbusiness of the Company and its Subsidiaries; provided, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any however, that no investigation or information provided pursuant to this Section 6.3 shall affect or be deemed to modify any representation or warranty made by the Company herein; and provided, further, that any information or access provided pursuant to this Section 6.3 shall be conducted in such manner as not subject to interfere unreasonably with the conduct terms and conditions of the business of Seller or Confidentiality Agreement (it being understood that Parent and Merger Sub shall be permitted to disclose as necessary and consistent with customary practices and the Business. Notwithstanding the foregoingConfidentiality Agreement such information to their respective Affiliates, unless required by TUPEofficers, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation recordsemployees, medical histories or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Datecounsel, Seller will afford promptly to Buyer and its agents reasonable access to its books of accountaccountants, financial advisors, financing sources and other records (including accountant's work papersagents and representatives), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From Between the date hereof until and the Closing DateEffective Time, Seller will (i) givethe Company will, upon reasonable request, give Parent and will cause each its authorized representatives and Persons providing or committed or proposing to provide the Company or Parent with financing and each Subsidiary their representatives, reasonable access during normal business hours to giveemployees, Buyerplants, its counseloffices, financial advisors, auditors warehouses and other authorized representatives reasonable access facilities and properties and to the offices, properties, all books and records (including Tax Returns and work papers of Sellerthe Company's independent auditors, each when available and analytical records and methods) of the Company and each Subsidiary relating its Subsidiaries, will permit Parent and its authorized representatives to make such inspections (including any physical inspections or soil or groundwater investigations) as they may reasonably request (including to allow Parent to assess the Business, (iipotential for unapproved or unintended events in products offered or sold by the Company) furnish, and will cause each instruct the officers and employees of the Company and each Subsidiary those of its Subsidiaries to furnish, furnish to Buyer, Parent and its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information with respect to the business and properties of the Company and any of its Subsidiaries (including information relating to vendors, growers, customers and product quality) as Parent may from time to time reasonably request; provided, that the Business as Company shall not be required to provide any such Persons may reasonably request and (iii) instruct information if the employees, counsel and financial advisors of Seller or any Company or any Subsidiary Person receiving such information is not subject to cooperate with Buyer in its investigation a confidentiality agreement for the benefit of the BusinessCompany; provided, including (without limitation) any further, that in the event Parent or its authorized representatives or agents elect to prepare Phase I environmental investigations relating site assessments, equivalent analyses, or any other reports analyzing potential environmental, human health, or safety issues or liabilities based on the books and records of the Company, or access to properties used in the BusinessCompany's employees, plants, etc., Parent shall promptly provide to the Company copies of any such reports (when executed and delivered), including cost estimates (if any). Any investigation All information obtained by Persons pursuant to this Section 6.5(a) shall be conducted kept confidential in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoingaccordance with, unless required by TUPE, Buyer and shall not have access prior otherwise be subject to the Closing Date terms of, the confidentiality letter agreement, dated October 13, 2004, from the Parent to personnel records of any the Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or and Alfonso Romo Garza (the disclosure of which could subject any Company or any Subsidiary to risk of liability"Confidentiality Agreement").
(bx) On Xxxxx xx the Effective Time, the Company shall, no later than 30 days following the end of each month and after 45 days following the Closing Dateend of each quarter, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial to Parent upon completion the balance sheet, income statement and statistical information relating to the Business as may be reasonably requested statement of cash flows prepared in connection accordance with the Debt Financings, (C) making appropriate employees, accountants and advisors GAAP of the Companies available Company for due diligence meetings each month ended between the date of this Agreement and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerEffective Time.
Appears in 1 contract
Samples: Merger Agreement (Seminis Inc)
Access to Information. (a) From the date hereof of this Agreement until (x) with respect to the Companies other than ALS Financing, the First Closing Date and (y) with respect to ALS Financing, the Second Closing Date, upon reasonable prior written notice, and except as determined in good faith to be appropriate to ensure compliance with any applicable Laws and subject to any applicable privileges (including the attorney-client privilege), contractual confidentiality obligations and privacy rights of residents, Seller will shall, and shall cause each of the Companies and each such Person's respective Representatives to: (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives afford the Representatives of Acquiror reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, Companies; (ii) furnish, and will cause each Company and each Subsidiary furnish to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives the Representatives of Acquiror such additional financial and operating data and other information relating regarding the Companies' businesses conducted by them as Acquiror may from time to the Business as such Persons may time reasonably request request; and (iii) instruct afford the employeesRepresentatives of Acquiror and its Affiliates reasonable access to the employees of Seller and their Affiliates in respect of the Companies (and the businesses conducted by the Companies) and use their reasonable commercial efforts (without any requirement of Seller and the Companies or any of their respective Representatives to incur any expense to a third party) to make available to the Representatives of Acquiror and its Affiliates the employees of third party outsourcing companies who provide services to, counsel and financial advisors are located on the premises of, the Companies, in each case, whose assistance and expertise is necessary to assist Acquiror in connection with Acquiror's preparation to integrate the Companies and their businesses and personnel into Acquiror's organization following the applicable Closing; provided, however, that such investigation shall be on a basis and follow procedures that the parties shall mutually agree, and shall not unreasonably interfere with any of the businesses or operations of Seller, the Companies or any of their respective Affiliates; and provided, further, that the auditors and accountants of Seller, the Companies or any of their respective Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so reasonably requested by Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the BusinessCompanies, including (without limitation) Acquiror shall enter into a customary joint defense agreement with any Phase I environmental investigations relating one or more of Seller and the Companies with respect to properties used in the Business. Any investigation any information to be provided to Acquiror 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability5.02(a).
(b) On In addition to the provisions of Section 5.03, from and after (x) with respect to the Companies other than ALS Financing, the First Closing Date and (y) with respect to ALS Financing, the Second Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose purpose, including the preparation of Tax Returns and the determination of any matter relating to the Businessrights or obligations of Seller or its respective Affiliates under this Agreement, upon reasonable prior written notice, and except as determined in good faith to be appropriate to ensure compliance with any applicable Laws (including any rights of any current or former employee of any of the Companies with respect to privacy or confidentiality of such employee's personnel, medical and other records and information) and subject to any applicable privileges (including the attorney-client privilege), privacy rights of residents, contractual confidentiality obligations and privacy rights of residents, Acquiror shall, and shall cause the Companies and their respective Affiliates and Representatives to: (i) afford the Representatives of Seller and its Affiliates reasonable access, during normal business hours, to the offices, properties, books and records of the Companies and the businesses conducted by them; provided (ii) furnish to Seller and its respective Affiliates and Representatives such additional financial and other information regarding the Companies and the businesses conducted by them as Seller or its respective Representatives may from time to time reasonably request; and (iii) make available to the Representatives of Seller and its Affiliates the employees of Acquiror and its Affiliates in respect of the Companies and the businesses conducted by them whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller or any of the respective Affiliates in connection with Seller's inquiries for any of the purposes referred to above, including, at Seller's sole cost and expense, reimbursement to Acquiror or such Affiliates; provided, that the requesting party will reimburse Acquiror for the reasonable value of the time and any out-of-pocket expenses of such access by Buyer Persons who appear as witnesses in hearings or trials at the request of Seller; provided, however, that such investigation shall be on a basis and follow procedures that the parties shall mutually agree, and that such investigation shall not unreasonably interfere with the conduct business or operations of Acquiror or any of its Affiliates; provided, further, that the business auditors and accountants of SellerAcquiror or its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be If so reasonably requested by Buyer in timely obtaining Acquiror, Seller or the Debt Financings contemplated by applicable Affiliate thereof shall enter into a customary joint defense agreement with Acquiror and its Affiliates (including the Commitment Letters, including, without limitation, (ACompanies) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts any information to prepare and deliver such financial and statistical information relating be provided to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access Seller pursuant to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthis Section 5.02(b).
Appears in 1 contract
Samples: Stock Purchase Agreement (Provident Senior Living Trust)
Access to Information. (a) From the date hereof until of this Agreement to the Closing DateEffective Time, Seller will (i) givethe Company will, and will cause each Company its subsidiaries, officers, directors, employees and each Subsidiary agents upon reasonable notice to, afford to giveofficers, Buyeremployees, and agents of Parent, Merger Sub and their affiliates and the banks, other financial institutions, and investment bankers working with Parent or Merger Sub, and their respective officers, employees and agents, complete access at all reasonable times to its counselofficers, financial advisorsemployees, auditors and other authorized representatives reasonable access to the officesagents, properties, books books, records and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnishcontracts, and will cause each Company furnish Parent, Merger Sub and each Subsidiary to furnishtheir affiliates and the banks, to Buyerother financial institutions and investments bankers working with Parent or Merger Sub, its counselall financial, financial advisors, auditors operating and other authorized representatives such financial and operating data and other information relating to the Business as such Persons may they reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityrequest.
(b) On Each of Parent and after Merger Sub will hold and will cause its directors, officers, agents, employees, consultants and advisors to hold in confidence, unless compelled to disclose by judicial or administrative process or, in the Closing Datewritten opinion of its legal counsel, Seller will afford promptly to Buyer by other requirements of law, all documents and information concerning the Company and its agents reasonable access subsidiaries furnished to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred persons in connection with the foregoingtransactions contemplated by this Agreement (except to the extent that such information can be shown to have been (i) previously known by such persons from sources other than the Company, or its directors, officers, representatives or affiliates; (ii) in the public domain through no fault of such persons; or (iii) later lawfully acquired by such persons on a non-confidential basis from other sources who are not known by Parent or Merger Sub to be bound by a confidentiality agreement or otherwise prohibited from transmitting the information to Parent or Merger Sub by a contractual, legal or fiduciary obligation) and will not release or disclose such information to any other person, except its directors, officers, agents, employees, consultants and advisors, in connection with this Agreement who need to know such information. If the transactions contemplated by this Agreement are not consummated, such confidence shall be maintained and, if requested by or on behalf of the Company, Parent and Merger Sub will, and will use all reasonable efforts to cause their auditors, attorneys, financial advisors and other consultants, agents and representatives to, return to the Company or destroy all copies of written information furnished by the Company to Parent and Merger Sub or their agents, representatives or advisors. It is understood that Parent and Merger Sub will be deemed to have satisfied their obligation to hold such information confidential if they exercise the same care as they take to preserve confidentiality for their own similar information.
(c) Sellers and No investigation pursuant to this SECTION 5.7 will affect any representations or warranties of the Companies agree to provide such cooperation as may be reasonably requested by Buyer parties in timely obtaining this Agreement or the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect conditions to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors obligations of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access parties to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthis Agreement.
Appears in 1 contract
Samples: Merger Agreement (Anchor Gaming)
Access to Information. Subject to any restriction under Law, upon reasonable notice, the Company shall (and shall cause the respective Representatives and employees of the Acquired Corporations (other than Principal and Board members who are members of the Purchaser Group) to): (a) From provide Representatives and employees of Purchaser reasonable access, in a manner not disruptive to the date hereof until operations of the business of the Acquired Corporations, during normal business hours and upon reasonable notice during the Pre-Closing DatePeriod, Seller will to the properties, books, records, Tax Returns and other documents and information of the Acquired Corporations and to the Acquired Corporations’ officers and employees (other than Principal and any of his Representatives; and (b) furnish promptly to such Representatives and employees all information concerning the business, properties and personnel of the Acquired Corporations as may reasonably be requested. Without limiting the generality of any of the foregoing, during the Pre-Closing Period, the Company shall promptly provide Purchaser with, to the extent not limited by Law, copies of: (i) giveall material operating and financial reports prepared by the Acquired Corporations for the Company’s officers, including, if applicable, copies of the unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows; (ii) any material notice, document or other communication (other than any communication that relates solely to routine commercial transactions and that is of the type sent in the ordinary course of business) sent by or on behalf of any of the Acquired Corporations to any party to any Company Material Contract or sent to any of the Acquired Corporations by any party to any Company Material Contract; (iii) any notice, report or other document filed with or sent to any Governmental Entity on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (iv) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Entity; provided that nothing herein shall require any of the Acquired Corporations to disclose any information to Purchaser or Sub if such disclosure would, in the reasonable judgment of the Company, (x) cause significant competitive harm to the Company or its Subsidiaries if the Contemplated Transactions are not consummated, (y) violate applicable Law or the provisions of any Contract to which or by which any Acquired Corporation is a party or bound or (z) jeopardize any attorney-client or other legal privilege. Purchaser agrees that it will not, and will cause each Company its Representatives and each Subsidiary to giveemployees not to, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other use any information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation obtained pursuant to this Section shall be conducted in such manner as not 6.2 for any competitive or other purpose unrelated to interfere unreasonably with the conduct consummation of the business of Seller or the BusinessContemplated Transactions. Notwithstanding the foregoing, unless required by TUPE, Buyer The Confidentiality Agreement shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations apply with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred furnished by Seller, the Companies any Acquired Corporation or any Subsidiaries in connection with the foregoing shall be paid of their Representatives or reimbursed promptly following demand therefor, by Buyeremployees.
Appears in 1 contract
Access to Information. From and after the Time of Distribution, Crane will, and will cause each Crane Subsidiary to, afford to the Company and its Representatives (aat the Company's expense) reasonable access and duplicating rights during normal business hours and upon reasonable advance notice to all Information within Crane's possession or control or in the possession or control of a Crane Subsidiary relating to the Company, any Company Subsidiary or the Building Products Business, insofar as such access is reasonably required by the Company or any Company Subsidiary, subject to the provisions below regarding Privileged Information. From and after the date hereof until Time of Distribution, the Closing Date, Seller will (i) giveCompany will, and will cause each Company Subsidiary to, afford to Crane and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives Representatives (at Crane's expense) reasonable access and duplicating rights during normal business hours and upon reasonable advance notice to all Information within the offices, properties, books and records Company's possession or control or in the possession or control of Seller, each a Company and each Subsidiary relating to Crane, any Crane Subsidiary or the Businessbusinesses of the Pre-Distribution Group, insofar as such access is reasonably required by Crane or any Crane Subsidiary, subject to the provisions below regarding Privileged Information. Without limiting the foregoing, Information may be requested under this Article V for audit, accounting, claims, litigation, insurance, environmental and safety and tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations and for performing this Agreement and the transactions contemplated hereby. In furtherance of the foregoing:
(a) Each party acknowledges that (i) each of Crane and the Company (and the members of the Crane Group and the Company Group, respectively) has or may obtain Privileged Information; (ii) furnishthere are a number of Actions affecting one or more of the members of the Crane Group and the Company Group; (iii) the parties may have a common legal interest in Actions, in the Privileged Information, and will cause in the preservation of the confidential status of the Privileged Information, in each 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 case relating to the Business as such Persons may reasonably request business of the Crane Group or the Company Group; and (iiiiv) instruct both Crane and the employees, counsel Company intend that the transactions contemplated by the Transaction Agreements and financial advisors any transfer of Seller or any Company or any Subsidiary to cooperate with Buyer Privileged Information in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer connection therewith shall not have access prior to the Closing Date to personnel records operate as a waiver of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitypotentially applicable privilege.
(b) On Each of Crane and after the Closing DateCompany agrees, Seller will afford promptly on behalf of itself and each member of the Group of which it is a member, not to Buyer and its agents reasonable access disclose or otherwise waive any privilege attaching to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose Privileged Information relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct business of the business of Seller. Buyer shall bear all Company Group or the Crane Group, respectively, without providing prompt written notice to and obtaining the prior written consent of the out-of-pocket costs other, which consent will not be unreasonably withheld. In the event of a disagreement between any member of the Crane Group and expenses (including attorneys' feesany member of the Company Group concerning the reasonableness of withholding such consent, but excluding reimbursement for general overheadno disclosure will be made prior to a final, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingnonappealable resolution of such disagreement.
(c) Sellers and Upon any member of the Companies agree to provide such cooperation as may be reasonably requested by Buyer Crane Group or any member of the Company Group receiving any subpoena or other compulsory disclosure notice from a court, other Governmental Entity or otherwise that requests disclosure of Privileged Information, in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect each case relating to the Debt Financingsbusiness of the Company Group or the Crane Group, respectively, the recipient of the notice will promptly provide to the other party (Bfollowing the notice provisions set forth herein) using reasonable efforts to prepare a copy of such notice, the intended response, and deliver such financial and statistical all materials or information relating to the Business other Group that might be disclosed. In the event of a disagreement as may be reasonably requested in connection with to the Debt Financingsintended response or disclosure, (C) making appropriate employeesunless and until the disagreement is resolved, accountants the parties will cooperate to assert all defenses to disclosure claimed by either Group, at the cost and advisors expense of the Companies available for due diligence meetings Group claiming such defense to disclosure, and for participation in meetings with rating agencies shall not disclose any disputed documents or information until all legal defenses and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting claims of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerprivilege have been finally determined.
Appears in 1 contract
Samples: Distribution Agreement (Huttig Building Products Inc)
Access to Information. (a) From the date hereof until the Closing Date(upon reasonable notice to and approval of the Seller, which shall not be unreasonably withheld) during normal business hours with the purpose that an uninterrupted and efficient transfer of the Business may be accomplished, the Seller will shall, and shall cause the officers, directors, employees, auditors and agents of the Company to (i) giveafford the officers, employees and will cause each Company authorized agents and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives of the Purchaser reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, Company; (ii) furnishpermit the officers, employees and will cause each authorized agents and representatives of the Purchaser to interview the employees of the Company for the purpose of enrolling such employees, subject to the Closing, in the Purchaser's employee benefits plans; and each Subsidiary (iii) furnish to furnishthe officers, to Buyer, its counsel, financial advisors, auditors employees and other authorized agents and representatives of the Purchaser such additional financial and operating data and other information relating regarding the Company as the Purchaser may from time to time reasonably request; provided, however, that such investigation shall not unreasonably interfere with any of the Business as such Persons may reasonably request and (iii) instruct businesses or operations of the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation Affiliate of the BusinessSeller, including (without limitation) any Phase I environmental investigations relating to properties used in the Company and the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of ; and provided, further, that Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have be required to provide any such information or access prior to the Closing Date extent that such information or access would cause Seller to personnel records be in breach of any Company or any Subsidiary relating confidentiality restrictions applicable 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 any Company or any Subsidiary to risk of liabilityit.
(b) On The Seller shall, and after the Closing Date, Seller will afford promptly to Buyer and shall cause its agents reasonable access to its books of account, financial and other records (including accountant's work papers), informationofficers, employees and representatives to, provide reasonable access for the Purchaser and the Purchaser's independent auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct financial books and records of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred Company in connection with the foregoingPurchaser's preparation of such audited and unaudited financial statements of the Company as the Purchaser may reasonably determine are necessary to satisfy the requirements of its financing sources, the Securities Act or the Exchange Act applicable to the Purchaser and its Affiliates. Under no circumstances shall the Seller or any such officer, employee or representative have any liability whatsoever (other than as expressly provided in this Agreement) to the Purchaser, the Purchaser's independent auditors or otherwise to any Person or Governmental Authority, including under the Securities Act or the Exchange Act, in connection with such financial statements or the preparation or use thereof, and the Purchaser shall indemnify, defend and hold harmless the Seller and each such Person against and reimburse the Seller and each such Person for any and all such liability. The preceding sentence shall not apply insofar as the liability is based on erroneous information contained in the financial books and records of the Company. The Purchaser shall pay all expenses in connection with the preparation of such financial statements, including any expenses incurred by the Seller or the Company.
(c) Sellers and the Companies agree to The Seller shall provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt FinancingsPurchaser promptly after the date hereof, (B) using reasonable efforts payroll information in either electronic or written format concerning each Business Employee, including such employee's name, social security number, street address, W-4 elections, marital status, FICA contributions to prepare date, and deliver such financial and statistical person's payroll cycle. The Seller agrees to update such information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings Closing Date and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all as of such other dates as the Purchaser may reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerrequest.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing, the Company shall (a) afford Holdings and its Representatives reasonable access (at reasonable times during normal business hours and upon reasonable advance notice and subject to any restrictions contained in confidentiality agreements to which the Company is subject) to the Real Property, properties, assets, premises, books and records, Contracts and other documents and data related to the Company and its Subsidiaries, subject to reasonable notice; and (b) furnish Holdings and its Representatives with such financial, operating and other data and information related to the Company and its Subsidiaries as Holdings or any of its Representatives may reasonably request. From the Closing until the Unwind Option Expiration Date, Seller will the Company shall (i) give, afford Company Parent and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives Representatives reasonable access (at reasonable times during normal business hours and upon reasonable advance notice and subject to any restrictions contained in confidentiality agreements to which the Company is subject) to the officesReal Property, properties, assets, premises, books and records of Sellerrecords, each Contracts and other documents and data related to the Company and each Subsidiary relating its Subsidiaries, subject to the Business, reasonable notice; and (ii) furnishfurnish Company Parent and its Representatives with such financial, operating and will cause each other data and information related to the Company and each Subsidiary its Subsidiaries as Company Parent or any of its Representatives may reasonably request. With respect to furnishany access under this Section 5.2(a), (A) such access shall not unreasonably disrupt the operations of the Company; and (B) the Company shall not be required to Buyerprovide access to or to disclose information if the Company reasonably believes that such access or disclosure could (x) violate any applicable Law (including antitrust laws or data protection laws, its counselrules or regulations), financial advisorsthe terms of any Contract, auditors and other authorized representatives or any fiduciary duty or duty of confidentiality owed to any Person (whether such financial and operating data and other information relating duty arises contractually, statutorily or otherwise), or (y) jeopardize the privilege of the Company with respect to attorney-client communications or attorney work product, or (z) cause significant competitive harm to the Business as such Persons may reasonably request and (iii) instruct Company if the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its transactions contemplated hereby are not consummated. No investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories Holdings or other information which received by Holdings shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the Company in Seller's good faith opinion is sensitive this Agreement. No investigation by Company Parent or other information received by Company Parent shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the disclosure of which could subject any Company or any Subsidiary to risk of liabilityHoldings in this Agreement.
(b) On Holdings and after Merger Sub hereby acknowledge and agree that they are not authorized to and shall not (and shall cause their Affiliates and their and their Affiliates’ respective employees, counsel, accountants, consultants, financing sources or other Representatives not to) contact any employee (other than the executive officers of the Company), competitor, supplier, distributor, customer, consultant, agent, Representative or other commercial counterparty of the Company prior to the Closing Date, Seller will afford promptly to Buyer and its agents reasonable without the prior written consent of the Company in each instance. All requests for information regarding the Company or for access to its any of the properties, books or records of accountthe Company shall be directed to Xxxxxx X.
X. Xxxx, financial and other records neither Holdings nor Merger Sub nor any of their respective Representatives shall (including accountant's work papers), information, employees and auditors to the extent necessary directly or useful for Buyer in connection indirectly) contact or communicate with any auditother officer, investigationdirector, dispute manager, employee, agent or litigation other Representative of the Company or any other reasonable business purpose relating to of its Affiliates without the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct prior written approval of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingXxxxxx X. X. Xxxx.
(c) Sellers The information provided pursuant to this Section 5.2 shall be used solely for the purpose of the transactions contemplated hereby. Holdings and the Companies agree Company shall comply with, and shall cause their respective Representatives to provide such cooperation as may be reasonably requested by Buyer comply with, the terms set forth in timely obtaining that certain Nondisclosure Agreement dated May 24, 2019 between Sana Services, Inc. (an Affiliate of Holdings) and Rewi Enterprises, LLC (an Affiliate of the Debt Financings contemplated by Company) (the Commitment Letters“Confidentiality Agreement”), including, without limitation, (A) assisting which shall survive the termination of this Agreement in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection accordance with the Debt Financingsterms set forth therein. Company Parent, (C) making appropriate employeesHoldings and the Company, accountants shall comply with, and advisors shall cause their respective Representatives to comply with, all of their respective obligations under the Confidentiality Agreement, dated as of the Companies available for due diligence meetings Closing, between Holdings and for participation the Company (the “Post-Closing Confidentiality Agreement”), which shall survive the termination of this Agreement in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection accordance with the foregoing terms set forth therein. The Post-Closing Confidentiality Agreement shall be paid or reimbursed promptly following demand therefor, by Buyersubstantially similar in form and substance as the Confidentiality Agreement unless the parties thereto otherwise agree.
Appears in 1 contract
Samples: Merger Agreement (GigCapital2, Inc.)
Access to Information. The Company shall, and shall cause each of the License Subsidiaries and the Excluded Entities (ain the case of the Excluded Entities, solely with respect to information related to Taxes and network operations on spectrum encompassed within the FCC Licenses) From to, afford to the Parent and the Acquiror and to their respective officers, employees, accountants, counsel, financial advisors and other representatives, reasonable access during normal business hours from the date hereof until the Closing Dateto all the properties, Seller will books, contracts, commitments, personnel, reports and records of or relating to the Company, any of the License Subsidiaries or any of the Excluded Entities (in the case of the Excluded Entities, solely with respect to information related to Taxes and network operations on spectrum encompassed within the FCC Licenses) and during such period the Company shall, and shall cause each of the License Subsidiaries and the Excluded Entities (in the case of the Excluded Entities, solely with respect to information related to Taxes and network operations on spectrum encompassed within the FCC Licenses) to, furnish promptly to the Parent and the Acquiror, and to any other person that the Parent and the Acquiror may reasonably request (a) a copy of each report, schedule, disclosure statement and other document that relates in whole or in part to this Agreement, the FCC Licenses or the Acquiror or the Parent filed by it during such period in the Bankruptcy Case, (b) such operating reports, financial reporting packages and other operational and/or financial information sent to management or the Board of Directors or to the banks with whom the Company and the License Subsidiaries maintain credit facilities or lines of credit or to the Creditors’ Committee and (c) all other information concerning its business, properties and personnel as the Acquiror may reasonably request; provided, however, that nothing in this Section 5.2 or otherwise shall require the Company to furnish to the Acquiror or Parent (i) give, and will cause each Company and each Subsidiary any materials prepared by the Company’s financial advisors or legal advisors with respect to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Businessan Alternative Proposal (as defined herein), (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other access or information in violation of applicable Law or (iii) access or information relating to (A) any of the Business as Excluded Entities to the extent that such Persons may reasonably request information is not related to Taxes and does not relate to the FCC Licenses (iiiincluding for these purposes network operations on spectrum encompassed within the FCC Licenses), this Agreement or the Transaction Documents or (B) instruct to the employeesextent that such information is not related to Taxes, counsel the assets and financial advisors liabilities of Seller or any the Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) License Subsidiaries to be assigned to or assumed by any Phase I environmental investigations relating to properties used in of the Business. Any investigation Excluded Entities 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityBankruptcy Plan.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From and after the date hereof until the earlier of the Closing DateDate or the termination of this Agreement in accordance with its terms, Seller will (i) giveupon reasonable notice, and will cause each Company subject to restrictions contained in any confidentiality agreement or Antitrust Laws to which the Companies are subject, Sellers shall (solely to the extent they or their Affiliates have the right to do so under the applicable Laws) provide to Buyer and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives Representatives during normal business hours reasonable access to the offices, properties, books and records of Seller, each Company the Companies and each Subsidiary relating their respective Subsidiaries (in a manner so as to not interfere with the normal business operations of the Companies and their respective Subsidiaries). All such information to which Buyer and its authorized Representatives are provided access shall be treated as confidential information pursuant to the Businessterms of the Confidentiality Agreement, the provisions of wh ich are by this reference hereby incorporated herein. Notwithstanding anything to the contrary set forth in this Agreement, during the period from the date hereof until the Closing, neither the Companies nor any of their respective Affiliates shall be required to disclose to Buyer or any of its Representatives (a) any information (i) if doing so would violate any Contract or Law to which the Companies or any of their respective Affiliates is a party or is subject or which either Company reasonably determines upon the advice of counsel could result in the loss of the ability to successfully assert the attorney-client and work product privileges, (ii) furnishif either Company or any of their respective Affiliates, on the one hand, and will cause each Company any of Buyer or any of its Affiliates, on the other hand, are adverse parties in an Action and each Subsidiary to furnishsuch information is reasonably pertinent thereto, 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 or (iii) instruct the employees, counsel and financial advisors of Seller or any if either Company or any Subsidiary of their respective Affiliates reasonably determines that such information should not be so disclosed due to cooperate with Buyer in its investigation of the Businesscommercially sensitive nature, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On any Certain identified information marked with [***] has been excluded from this exhibit because it is not material and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct is of the business of Seller. Buyer shall bear all of type that the out-of-pocket costs registrant treats as private and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingconfidential.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Share Purchase Agreement (New Fortress Energy Inc.)
Access to Information. (a) From the date hereof until the Closing Date, upon reasonable notice, Seller will shall, and shall cause the Target Companies and each of their respective officers, directors, employees, auditors and agents to, (i) giveafford the officers, employees and will cause each Company authorized agents and each Subsidiary to giverepresentatives of Purchaser and its Affiliates reasonable access, Buyerduring normal business hours, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the BusinessTarget Companies and, (ii) furnishfurnish to the officers, employees and will cause each Company authorized agents and each Subsidiary to furnish, to Buyer, representatives of Purchaser and its counsel, financial advisors, auditors and other authorized representatives Affiliates such additional financial and operating data and other information relating regarding the Target Companies as Purchaser may from time to time reasonably request; provided, however, that such investigation shall not unreasonably interfere with any of the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors businesses or operations of Seller or any Company or any Subsidiary to cooperate with Buyer in of its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityAffiliates.
(b) On and In order to facilitate the resolution of any claims made by a third party against a party or any Target Company or any Affiliate or for which a party or any of its Affiliates remains liable, after the Closing Date, Seller will upon reasonable notice, each party shall (i) afford promptly the officers, employees and authorized agents and representatives of a requesting party reasonable access, during normal business hours, to Buyer the offices, properties, books and its records of each party and those of the Target Companies; (ii) furnish to the requesting parties' officers, employees and authorized agents reasonable access to its books of account, and representatives such additional financial and other records (including accountant's work papers), informationinformation in its possession or in the possession of any Target Company or Affiliate as it or such officers, employees and auditors authorized agents and representatives may from time to time reasonably request; and (iii) make available at the extent requesting party's expense to each party its then current employees whose assistance, testimony or presence is necessary or useful for Buyer to assist the requesting party in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that evaluating any such access by Buyer claims and in defending such claims, including the presence of such persons as witnesses in hearings or trials for such purposes; provided, however, that (i) such investigation shall not unreasonably interfere with the conduct business or operations of the business Purchaser or Seller, any Target Company or any of Seller. Buyer its Affiliates and (ii) no party or other Person shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingbe required to disclose any privileged information or any attorney work product.
(c) Sellers and Notwithstanding the Companies agree foregoing, Seller shall not be required, prior to the Closing Date, to disclose, or cause the disclosure of, to the officers, employees or authorized agents or representatives of Purchaser (or provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersaccess to any offices, includingproperties, without limitation, (A) assisting books or records of Seller or any of its Affiliates that could result in the preparation of offering circulars, disclosure to such persons or others of) any confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financingspricing and marketing plans, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting extent that Seller reasonably believes that disclosure of security interests in collateral for such information would create a significant risk of a violation of any antitrust or competition Law, nor shall Seller be required to permit or cause others to permit the Debt Financings. All reasonable out-of-pocket expenses incurred by Sellerofficers, employees or authorized agents or representatives of Purchaser to copy or remove from the Companies offices or properties of Seller or any Subsidiaries in connection with the foregoing shall be paid of its Affiliates any documents, drawings or reimbursed promptly following demand therefor, by Buyerother materials that might reveal any such confidential information.
Appears in 1 contract
Access to Information. (a) From the date hereof until Prior to the Closing Date, Seller will subject to Section 7.1(b), Purchaser shall be entitled, through its Representatives, to (i) give, make such investigation of the Business and will cause each Company the properties and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors assets of the Acquired Companies and other authorized representatives reasonable access to such examination of the offices, properties, books and records of Seller, each Company the Acquired Companies and each Subsidiary relating (ii) have such access to the Businessofficers and key employees of Seller Parent and its applicable Subsidiaries who are familiar with the Acquired Companies and the Business in connection with Purchaser’s preparation to integrate the Business into Purchaser’s organization following the Closing, in each case, as Purchaser reasonably requests; provided that such investigation, examination and access shall not include (i) any investigation, examination or access by Purchaser that would violate applicable Law, including Applicable Competition Laws, (ii) furnishany investigation or examination of, and will cause each Company and each Subsidiary to furnishor access to, to Buyerbids, its counselletters of intent, financial advisors, auditors and expressions of interest or other authorized representatives such financial and operating data and other proposals received from others in connection with the transactions contemplated by this Agreement or otherwise or information or analyses relating to the Business as such Persons may reasonably request and communications, (iii) instruct the employeesany investigation or examination of, counsel and financial advisors of Seller or access to, any Company or any Subsidiary to cooperate with Buyer in its investigation of the Businessinformation, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 would reasonably be expected to result in the loss of any Company legal privilege available to Sellers, the Acquired Companies or any Subsidiary of their respective Affiliates relating to risk such information or would cause Sellers, the Acquired Companies or any of liabilitytheir respective Affiliates to breach a confidentiality obligation by which it is bound, or (iv) any investigation or examination of, or access to, any internal valuations of the Acquired Companies or the Acquired Companies Equity Interests or information or analysis relating to such valuations; provided further that, in the case of clauses (i) and (iii), Sellers shall notify Purchaser of the nature of the information being withheld and, at Purchaser’s request, take reasonable actions or implement arrangements (which could include, depending on the reasonableness thereof in the circumstances, entering into confidentiality agreements or joint defense agreements, obtaining the consent of third parties, redacting parts of documents, preparing “clean” summaries of information or limiting the availability of information to a “clean team” or to outside legal counsel) in order to make information available to Purchaser to the extent reasonably possible.
(b) On Any request for investigation, examination or access pursuant to this Section 7.1 shall be made to Seller Parent reasonably in advance, and after any such investigation, examination or access shall be conducted during regular business hours and under commercially reasonable circumstances and shall be subject to any restrictions applicable under Law, including Applicable Competition Laws. Purchaser shall, and shall cause its Representatives to, use commercially reasonable efforts to minimize any disruption to the Closing Date, businesses of Seller will afford promptly to Buyer Parent and its agents reasonable Subsidiaries, including the Business. Purchaser shall, and shall cause its Representatives to, abide by any safety rules or rules of conduct reasonably imposed by Seller Parent or any of its Subsidiaries, including Sellers or the Acquired Companies in connection with such investigation, examination or access. Purchaser shall indemnify, defend and hold harmless Seller Parent and its Subsidiaries, including Sellers and the Acquired Companies, and their respective Representatives from and against any and all Losses asserted against or suffered by them relating to, resulting from or arising out of examinations, investigations or access made by Purchaser or its Representatives pursuant to its books of accountthis Section 7.1, financial and other records (including accountant's work papers), information, employees and auditors except to the extent necessary such Losses relate to, result from or useful for Buyer in connection with any audit, investigation, dispute arise out of the gross negligence or litigation willful misconduct of Seller Parent or any other reasonable business purpose relating of its Subsidiaries, including Sellers and the Acquired Companies, or any of their respective Representatives (it being expressly agreed that the Persons to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct whom this sentence applies are intended third party beneficiaries of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingthis Section 7.1).
(c) Notwithstanding anything contained in this Agreement to the contrary, prior to the Closing, without the prior written consent of Sellers and the Companies agree to provide such cooperation as (which may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitationwithheld for any reason), (Ai) assisting in Purchaser shall not contact any suppliers (including freight vendors) to, or customers of, the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested Acquired Companies in connection with the Debt Financingstransactions contemplated by this Agreement, and (Cii) making appropriate employees, accountants and advisors Purchaser shall have no right to perform invasive or subsurface investigations of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to properties of the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerAcquired Companies.
Appears in 1 contract
Access to Information. (a) From The Company and its subsidiaries shall afford to Parent and Subsidiary and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives"), and Parent and its subsidiaries shall afford to the Company and its accountants, counsel, financial advisors and other representatives (the "Company Representatives"), full access during normal business hours throughout the period after the date hereof until and prior to the Closing DateEffective Time to all of their respective properties, Seller will books, contracts, commitments and records (including, but not limited to, Tax Returns) and, during such period, shall furnish promptly to one another (i) givea copy of each report, schedule and other document filed or received by any of them pursuant to the requirements of federal or state securities laws or which may have a material effect on their respective businesses, properties or personnel, and will cause each Company and each Subsidiary to give(ii) such other information concerning their respective businesses, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the officesoperations, properties, books assets, condition (financial or other) results of operations and records of Sellerpersonnel as Parent or Subsidiary or the Company, each Company and each Subsidiary relating to as the Businesscase may be, (ii) furnish, and will cause each 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 Business as such Persons may shall reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any request; provided that no investigation pursuant to this Section 8.1 shall be conducted amend or modify any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Merger. Parent and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Parent Representatives to hold, and the Company and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Company Representatives to hold, in such manner strict confidence all non-public documents and information furnished to Parent and Subsidiary or to the Company, as not to interfere unreasonably the case may be, in connection with the conduct of transactions contemplated by this Agreement, except that Parent, Subsidiary and the business of Seller or Company may disclose (i) such information as may be necessary in connection with seeking the Business. Notwithstanding Parent Required Statutory Approvals, the foregoingCompany Required Statutory Approvals, unless the Company Stockholder's Approval and any required third party approvals, (ii) any information that it is required by TUPElaw or judicial or administrative order to disclose, Buyer shall (iii) any information which is generally available to or known by the public other than as a result of improper disclosure by the receiving party, or (iv) any information which is obtained by the receiving party from a source other than the disclosing party, provided that such source was not have access prior bound by a duty of confidentiality to the Closing Date disclosing party or another party with respect to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilitysuch information.
(b) On In the event that this Agreement is terminated in accordance with its terms, each party shall promptly redeliver to the other all non-public written material provided pursuant to this Section 8.1 and after the Closing Dateshall not retain any copies, Seller will afford promptly to Buyer and its agents reasonable access to its books extracts or other reproductions in whole or in part of accountsuch written material. In such event, financial all documents, memoranda, notes and other records writings prepared by Parent or the Company based on the information in such material shall be destroyed (including accountant's work papersand Parent and the Company shall use their respective reasonable best efforts to cause their advisors and representatives to similarly destroy their documents, memoranda and notes), information, employees and auditors to the extent necessary or useful for Buyer such destruction (and reasonable best efforts) shall be certified in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any writing by an authorized officer supervising such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingdestruction.
(c) Sellers The Company shall promptly advise Parent and Parent shall promptly advise the Companies agree to provide such cooperation Company in writing of any change or the occurrence of any event after the date of this Agreement having, or which, insofar as may can reasonably be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersforeseen, including, without limitation, (A) assisting in the preparation of offering circularsfuture may have, confidential information memoranda and rating agency presentations with respect to a Company Material Adverse Effect or a Parent Material Adverse Effect, as the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as case may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerbe.
Appears in 1 contract
Access to Information. (a) From the date hereof until of this Agreement, the Closing DateCompany will give Provant and the Underwriter and their respective representatives full access, Seller at reasonable times and with reasonable notice, to the offices and other facilities and to the books and records of the Company, will (i) givepermit Provant and the Underwriter and their respective representatives to make such inspections as they may reasonably require, and will cause each Company its officers and each Subsidiary to giverepresentatives (including, Buyerwithout limitation, its counsel, financial advisors, auditors firm of certified public accountants) to furnish Provant and other authorized the Underwriter and their respective representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary relating to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives with such financial and operating data and other information relating with respect to the Business business, operations, assets, liabilities and prospects of the Company as Provant and the Underwriter and their respective representatives may from time to time reasonably request. From the date of this Agreement, Provant and Acquisition will give the Company full access, at reasonable times, to the offices and other facilities and to the books and records of Provant and Acquisition, will permit the Company and its representatives to make such Persons inspections as they may reasonably request require, and will cause their respective officers and representatives (iii) instruct the employeesincluding, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation, their firm of certified public accountants) any Phase I environmental investigations relating to properties used furnish the Company and its representatives with such financial and operating data and other information with respect to the business, operations, assets and liabilities of Provant, Acquisition and the Additional Companies (in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior last case to the Closing Date extent such information is in the possession of Provant and the applicable Additional Company does not object to personnel records of any disclosure) as the Company or any Subsidiary relating and its representatives may from time 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 any Company or any Subsidiary to risk of liabilitytime reasonably request.
(b) On Provant and after Acquisition, on the Closing Dateone hand, Seller and the Company, on the other hand, will, and will afford promptly to Buyer cause their respective employees and agents (including, in the case of Provant, the Underwriter and its agents reasonable access employees and agents) (collectively, "Representatives") to, hold in strict confidence, unless compelled to disclose by judicial or administrative process or, in the opinion of its books counsel, by other requirements of accountlaw, financial all Confidential Information (as hereinafter defined) and other records will not disclose the same to any person. If this Agreement is terminated, each party having received or created any documents containing Confidential Information (including accountant's work papersdocuments received or created by its Representatives), will promptly return to the other party or destroy (or cause to be returned or destroyed) all documents (including all copies thereof) so received or created containing such Confidential Information. For purposes hereof, "Confidential Information" shall mean all information of any kind concerning the Company, or concerning any of Provant, Acquisition or any Additional Company, respectively, except information (i) ascertainable or obtained from public or published information, employees and auditors (ii) received from a third party not known to Provant, Acquisition or their Representatives, or to the extent necessary Company or useful for Buyer its 35 36 Representatives, as applicable, to be under an obligation to the Company or Provant, as applicable, to keep such information confidential, (iii) that is or becomes known to the public (other than through a breach of this Agreement), (iv) that was in the receiving party's possession before disclosure thereof to it in connection with any auditthis Agreement, investigation, dispute or litigation (v) that is independently developed by Provant or any other reasonable business purpose relating to by the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses Company (including attorneys' feestheir respective Representatives), but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingas applicable.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Merger Agreement (Provant Inc)
Access to Information. (a) From During the period from the date hereof until of this Agreement to the earlier of the Closing Dateand the termination of this Agreement in accordance with Article 9, Seller will the Target Entities shall, and shall cause each Company Subsidiary to (i) giveprovide the Buyer and its authorized Representatives with reasonable access, upon reasonable prior notice and will cause each Company and each Subsidiary to giveduring normal business hours, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the officespersonnel, assets, properties, books and records Books and Records of Sellerthe Target Entities and the Company Subsidiaries and to allow the Buyer to correspond with Damien Guillobez, each Company Xxxxxx Xxxxxxx, Ludovic de Sereys, Xxxx Xxxxxxx, Xxxx Xxxxxx, Gernot Trebsche, Louis Cisti, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxx Xxxxx, and each Subsidiary relating to the BusinessXxxxxxxxx Xxxxxx, and (ii) furnishfurnish the Buyer and its authorized Representatives with such information and data concerning the Target Entities, and will cause each 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 Subsidiaries as the Business as such Persons Buyer may reasonably request (including the preparation of internal monthly forecasts and management accounts which shall, so far as lawfully able, be shared with the Buyer as soon as reasonably practical following the production of such); provided, however, that (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitationA) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section such access shall be conducted in such a manner as not to unreasonably interfere unreasonably with the conduct businesses or operations of the business of Seller Target Entities, or any Company Subsidiary, (B) neither the Business. Notwithstanding the foregoingTarget Entities, unless nor any Company Subsidiary shall be required by TUPE, Buyer shall not have to provide any (1) access prior to the Closing Date to personnel records or information that would result in violation of any Company applicable Laws, or any Subsidiary relating to individual performance or evaluation records, medical histories or other (2) information which in Seller's good faith opinion is sensitive or the disclosure of which could subject would jeopardize any applicable privilege (including attorney client privilege) applicable to the Sellers, the Target Entities and any Company Subsidiary or their respective Affiliates, and (C) the Buyer shall not conduct any sampling, testing or other intrusive indoor or outdoor investigation at or in connection with the Leased Real Property without the Company’s prior written consent. Prior to Closing, the Buyer shall not, and shall cause its Affiliates and their respective Representatives not to, contact any officer, employee (excluding Damien Guillobez, Xxxxxx Xxxxxxx, Ludovic de Sereys, Xxxx Xxxxxxx, Xxxx Xxxxxx, Gernot Trebsche, Louis Cisti, Xxxx Xxxxxxxx, Xxxxxxx Xxxxxxxxxx, Xxxx Xxxxx, and Xxxxxxxxx Xxxxxx), agent, customer, supplier or any Subsidiary to risk other Person having any business relationship with the Target Entities or any Company Subsidiary, except with the approval of liabilitythe Sellers.
(b) On Any information provided to or obtained by the Buyer or its authorized Representatives pursuant to Section 7.2(a) above shall be “Confidential Information” (“Confidential Information”) as defined in the Confidentiality Agreement, dated as of March 13, 2018, by and after between the Closing DateSeller Guarantor and A&M Capital Advisors, Seller will afford promptly to Buyer and its agents reasonable access to its books of account, financial and other records LLC (including accountant's work papersthe “Confidentiality Agreement”), information, employees and auditors shall be held by the Buyer in accordance with and be subject to the extent necessary or useful terms of the Confidentiality Agreement. The terms of the Confidentiality Agreement shall continue in full force and effect until the Closing, at which time the Confidentiality Agreement shall terminate. In the event of the termination of this Agreement for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating reason prior to the Business; provided that any such access by Closing, the Buyer shall not unreasonably interfere comply with the conduct terms and provisions of the business of Seller. Buyer shall bear Confidentiality Agreement, including returning or destroying all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingConfidential Information.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing Date(or the earlier termination of this Agreement pursuant to Article VIII), Seller will (i) givethe Company will, and will cause each Company its Subsidiaries and each Subsidiary use commercially reasonable efforts to give, Buyer, cause its counsel, financial advisors, auditors Advisors and other authorized representatives to, provide Purchaser and its Advisors with reasonable access and upon reasonable advance notice and during regular business hours to the offices, properties, books and records (including work papers, schedules, memoranda, Tax Returns, Tax schedules, Tax rulings, and other Documents), documents, data, files, personnel and offices and properties of Seller, each the Company and each Subsidiary relating its Subsidiaries, in order for Purchaser and its Advisors to access such information regarding the BusinessCompany and its Subsidiaries as is reasonably necessary in order to consummate the transactions contemplated by this Agreement or otherwise as reasonably requested by Purchaser in connection with Purchaser’s actions provided for in this Agreement, or as requested by Purchaser in order for Purchaser and its Advisors to conduct a Phase I or similar environmental site assessment of any of the Acquired Assets; provided that (i) such access does not unreasonably interfere with the normal and Ordinary Course operations of the Company and its Subsidiaries, (ii) furnishall requests for access will be directed to PJT Partners LP or such other Person(s) as the Company may designate in writing from time to time, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct nothing herein will require the employeesCompany to provide access to any properties, counsel and financial advisors plants or facilities for the purposes of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including conducting (without limitationA) any Phase I or similar environmental investigations relating site assessment, including a Preliminary Assessment (as defined in ISRA), for any Acquired Leased Real Property in New Jersey for which a General Information Notice was submitted or (B) any subsurface or invasive environmental sampling or testing (for clarity, a Phase I environmental site assessment or similar environmental assessment shall not constitute subsurface or invasive environmental sampling or testing) and (iv) nothing herein will require the Company to properties used provide access to, or to disclose any information to, Purchaser if such access or disclosure (A) would result in the Business. Any investigation pursuant waiver of any attorney-client, work-product or other legal privilege or accountant privilege, (B) would reasonably be expected to this Section violate any applicable Laws (including the HSR Act and Foreign Competition Laws), or (C) would violate any fiduciary duty; provided further that the Company and its Subsidiaries will use commercially reasonable efforts to provide a reasonable alternative means of accessing any such information in a manner that is not inconsistent with the foregoing; provided further that no such access shall be conducted required in such manner as not to interfere unreasonably connection with a proceeding between Purchaser or any of its Affiliates, on the conduct of the business of one hand, and any Seller or any of its Affiliates, on the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityhand.
(b) On From time to time following the date hereof and after prior to the Closing DateClosing, Seller will afford promptly upon Purchaser’s reasonable request with respect to Buyer any Effects on the Company and its agents reasonable access Subsidiaries relating to its books of account, financial and other records or arising from the “Coronavirus” or “COVID-19” (including accountant's work papersany quarantine or trade restrictions or similar Effects reasonably related thereto) that would reasonably be expected to adversely impact the business and operations of the Company and its Subsidiaries in any material respect, the Sellers shall, and shall use their commercially reasonable efforts to cause their Advisors to, promptly (and, in any event, within five (5) Business Days of any written request of Purchaser) (i) provide, in a manner consistent with the provisions of Section 6.2(a), informationinformation reasonably requested by Purchaser and relating to such Effects and the Company and its Subsidiaries or, employees and auditors to the extent relevant to such Effects, its historical, current or future business, financial condition, results of operations, assets, Liabilities, properties, Contracts, environmental compliance, employee matters, regulatory compliance, business risks and prospects of the Company or any of its Subsidiaries related thereto, (ii) participate in meetings or teleconferences reasonably requested by Purchaser (including such members of senior management of the Company as may be reasonably requested or necessary or useful for Buyer with respect to such Effects) to discuss such Effects and information referred to in the immediately preceding clause (i), and (iii) consider in good-faith Purchaser’s requests, recommendations and advice in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingtherewith.
(c) The information provided pursuant to this Section 6.2 will be used solely for the purpose of consummating the transactions contemplated hereby or in connection with Purchaser’s actions provided for in this Agreement, and will be governed by all the confidentiality terms and conditions of the Loan Documents. Neither the Company nor any of Sellers makes any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, other than the Express Representations.
(d) From and after the Closing for a period of three (3) years following the Closing Date (or, if earlier, the closing of the Bankruptcy Case), Purchaser will provide Sellers and their Advisors with reasonable access, during normal business hours, and upon reasonable advance notice, to the Companies agree books and records, including work papers, schedules, memoranda, Tax Returns, Tax schedules, Tax rulings, and other Documents transferred to provide such cooperation Purchaser pursuant to this Agreement (for the purpose of examining and copying) relating to the Acquired Assets, the Excluded Assets, the Assumed Liabilities or the Excluded Liabilities, in each case, in Purchaser’s possession or control and solely to the extent concerning periods or occurrences prior to the Closing Date, and reasonable access, during normal business hours, and upon reasonable advance notice, to personnel, offices and properties of Purchaser, as may be reasonably requested by Buyer the Company in timely obtaining connection with the Debt Financings contemplated by Bankruptcy Cases, the Commitment Letterswind-down and liquidation of Sellers, includingto comply with legal, without limitationregulatory, stock exchange and financial reporting requirements, to satisfy any audit, accounting or similar requirement; provided, in each case, that such access does not unreasonably interfere with the normal operations of Purchaser; provided further that nothing herein will require Purchaser to provide access to, or to disclose any information to, Sellers if such access or disclosure (A) assisting would result in the waiver of any attorney-client, work-product or other legal privilege or accountant privilege, (B) would reasonably be expected to violate any applicable Laws (including the HSR Act and Foreign Competition Laws), (C) would reasonably expected to be in violation of the provisions of any agreement (including any confidentiality obligation) by which Purchaser or any of its Subsidiaries is bound, or (D) would violate any fiduciary duty; provided that Purchaser and its Subsidiaries will use commercially reasonable efforts to provide a reasonable alternative means of accessing any such information in a manner that is not inconsistent with the foregoing; provided further that no such access shall be required in connection with a proceeding between Purchaser or any of its Affiliates, on the one hand, and any Seller or any of its Affiliates, on the other hand.
(e) Unless otherwise consented to in writing by the other Parties, no Party, for a period of three (3) years following the Closing Date, shall destroy, alter or otherwise dispose of any of the books and records relating to any period occurring on or prior to the Closing without providing reasonable advance notice to such other Party and offering to permit such other Party (at such other Party’s sole cost and expense) to make copies of such books and records or any portion thereof that such Party may intend to destroy, alter or dispose of. From and after the Closing, Purchaser will, and will cause its employees to, provide Sellers with reasonable assistance, support and cooperation, upon reasonable advance notice and during normal business hours, with Sellers’ wind-down and related activities (e.g., helping to locate documents or information related to and assistance with preparation of offering circularsTax Returns or prosecution or processing of insurance/benefit claims); provided that such assistance, confidential information memoranda support and rating agency presentations cooperation does not (x) unreasonably interfere with Purchaser’s business and operations or (y) require Purchaser to incur any out of pocket costs or expenses.
(f) Except for contacts in the Ordinary Course unrelated to the transactions contemplated hereby, Purchaser will not, and will not permit any member of the Purchaser Group to, contact any officer, manager, director, employee, customer, supplier, lessee, lessor, lender, licensee, licensor, distributor, noteholder or other material business relation of the Company or its Subsidiaries prior to the Closing with respect to the Debt FinancingsCompany, its Subsidiaries, their business or the transactions contemplated by this Agreement without the prior written consent of the Company for each such contact, such consent not to be unreasonably withheld, conditioned or delayed.
(Bg) using From and after the Closing for a period of three (3) years following the Closing Date (or, if earlier, the closing of the Bankruptcy Case), Sellers will provide Purchaser and its Advisors with reasonable efforts access, during normal business hours, and upon reasonable advance notice, to prepare the books and deliver such financial records, including work papers, schedules, memoranda, Tax Returns, Tax schedules, Tax rulings, and statistical information other documents relating to the Business Company or its Subsidiaries (for the purpose of examining and copying) relating to the Acquired Assets, the Excluded Assets, the Assumed Liabilities or the Excluded Liabilities, in each case, in Sellers’ possession or control and solely to the extent concerning periods or occurrences prior to the Closing Date as may be reasonably requested by Purchaser (x) to comply with legal, contractual, regulatory, stock exchange and financial reporting requirements, (y) to satisfy any audit, accounting or similar requirement, or (z) to satisfy any other bona fide legal compliance, accounting or tax purpose; provided that nothing herein will require Sellers to provide access to, or to disclose any information to, Purchaser if such access or disclosure (A) would result in the waiver of any attorney-client, work-product or other legal privilege or accountant privilege, (B) would reasonably be expected to violate any applicable Laws (including the HSR Act and Foreign Competition Laws), or (C) would violate any fiduciary duty; provided that Sellers will use commercially reasonable efforts to provide a reasonable alternative means of accessing any such information in a manner that is not inconsistent with the foregoing; provided further that no such access shall be required in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies a proceeding between Purchaser or any Subsidiaries in connection with of its Affiliates, on the foregoing shall be paid one hand, and any Seller or reimbursed promptly following demand thereforany of its Affiliates, by Buyeron the other hand.
Appears in 1 contract
Samples: Asset Purchase Agreement (Akorn Inc)
Access to Information. (a) From the date hereof until the Closing Date, Seller and its representatives (including counsel, financial advisors, auditors and other representatives) will promptly: (ia) give, give Buyer and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, propertiesprop erties, contracts, books and records of Seller, each Company Seller and each Subsidiary its Affiliates relating to the BusinessA/TS Network or the Acquisition Assets, (iib) furnish, furnish to Buyer and will cause each 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 Business A/TS Network or the Acquisition Assets as such Persons Buyer may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersrequest, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information operating data of Seller's refining and marketing division directly relating to the Business as may be reasonably requested in connection with performance of the Debt Financings, A/TS Network and (Cc) making appropriate instruct the employees, accountants counsel, auditors, financial advisors and advisors other representatives of Seller and its Affiliates to cooperate with Buyer and its representa tives in its investigation of the Companies available for due diligence meetings business of the A/TS Network and for participation in meetings the Acquisition Assets; provided, however, that nothing set forth herein shall obligate Seller to provide Buyer or any of its attorneys, agents, employees, accoun tants or other representatives with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to any infor mation that is protected by the review and granting of security interests in collateral for the Debt Financings. All reasonable outattorney-of-pocket expenses incurred by Seller, the Companies client privilege or any Subsidiaries similar privilege. Seller will provide Buyer and its representatives (including counsel, financial advisors, auditors and other authorized representatives) reasonable access to Seller's employees employed in connection the business of the A/TS Network, and Buyer shall have the right to discuss the affairs and business of the A/TS Network with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyersuch employees.
Appears in 1 contract
Access to Information. (a) From During the period from the date hereof until of this Agreement to the Closing, upon reasonable advance notice to Seller and at reasonable times during normal business hours, so that an uninterrupted and efficient operation and transfer of the Business may be accomplished, Seller shall, and shall cause the Seller Subsidiaries to, (i) provide Buyer and its Representatives with full access, upon reasonable prior notice to all of Seller’s and the Seller Subsidiaries’ personnel, officers, employees, agents, accountants, properties (including for the purpose of environmental testing) and facilities related to the Business or the Acquired Assets as well as books and records (including Contracts) relating to the Business and the Acquired Assets and (ii) furnish Buyer and its Representatives with all such information and data (including copies of Contracts, Seller Plans and other books and records) concerning the Business and operations of the Business and the Acquired Assets as Buyer or any of such Representatives reasonably may request in connection with such investigation. Seller shall, and shall cause the Seller Subsidiaries to, assist Buyer in making such investigation and shall cause its counsel, accountants, engineers, consultants and other non-employee representatives to be reasonably available to Buyer for such purposes.
(b) After the Closing Date, Seller will (i) giveand Buyer shall, and will shall cause their respective Subsidiaries to, provide to each Company other and each Subsidiary to givetheir respective officers, Buyeremployees, its counsel, financial advisors, auditors counsel and other authorized representatives representatives, upon request, reasonable access to the offices, properties, books for inspection and records copying of Seller, each Company all information and each Subsidiary documents relating to the Business, (ii) furnishthe Acquired Assets or the Assumed Liabilities, and will cause each Company shall make their respective personnel reasonably available for interviews, depositions and each Subsidiary to furnishtestimony in any legal matter concerning transactions contemplated by this Agreement, 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 Seller operations or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose activities relating to the Business; provided , the Acquired Assets or the Assumed Liabilities and as otherwise may be necessary or desirable to enable the party requesting such assistance to: (i) comply with any reporting, filing or other requirements imposed by any Governmental Authority, (ii) assert or defend any Action or allegation in any litigation or arbitration or in any administrative or legal proceeding, other than Actions or allegations that any one party to this Agreement has asserted against the other, or (iii) subject to clause (ii) above, perform its obligations under this Agreement. The party requesting such access by Buyer information or assistance shall not unreasonably interfere with reimburse the conduct of the business of Seller. Buyer shall bear other party for all of the reasonable and necessary out-of-pocket costs and expenses (including attorneys' feesincurred by such party in providing such information and in rendering such assistance. The access to information and documents contemplated by this Section 5.2(b) shall be during normal business hours and upon reasonable prior notice and shall be subject to such reasonable limitations as the party having custody or control thereof may impose to preserve the confidentiality of information contained therein. Each party hereto agrees for a period extending seven years after the Closing Date not to destroy or otherwise dispose of any such books, but excluding reimbursement for general overheadrecords and other data unless such party shall first offer in writing to surrender such books, salaries records and employee benefits) actually other data to the other party and reasonably incurred such other party, shall agree in connection with writing to take possession thereof during the foregoingten-day period after such offer is made.
(c) Sellers From time to time following the Closing, Buyer may (i) receive and open all mail addressed to Seller, any Seller Subsidiary or any of their respective Subsidiaries and (ii) deal with the contents thereof in its discretion to the extent that such mail and the Companies agree contents thereof relate to provide such cooperation as may the Business. Buyer shall deliver or cause to be reasonably requested delivered to Seller all mail received by Buyer in timely obtaining after the Debt Financings contemplated by the Commitment LettersClosing addressed to Seller, including, without limitation, (A) assisting in the preparation any Seller Subsidiary or any of offering circulars, confidential information memoranda and rating agency presentations with respect their respective Affiliates that does not relate to the Debt FinancingsBusiness, (B) using reasonable efforts to prepare and deliver such financial and statistical information including all mail relating to the Business as may be reasonably requested in connection with Excluded Assets and the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerExcluded Liabilities.
Appears in 1 contract
Samples: Asset Purchase Agreement (Transaction Systems Architects Inc)
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) giveIDP shall afford to WMT and shall cause its --------------------- independent accountants to afford to WMT, and will cause each Company and each Subsidiary to giveits accountants, Buyer, its counsel, financial advisors, auditors counsel and other authorized representatives representatives, reasonable access during normal business hours to IDP's properties, books, contracts, commitments and records and to the independent accountants reasonable access to the offices, properties, books audit work papers and other records of SellerIDP's accountants; provided, that such access does not materially impair the ability of IDP to conduct its business in the ordinary course. During such period, IDP shall use reasonable efforts to furnish promptly to WMT (a) a copy of each Company report, schedule and each Subsidiary relating other document filed or received by IDP pursuant to the Business, (ii) furnish, requirements of federal and will cause each Company state securities laws 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On all other information concerning the business, properties and personnel of IDP as WMT may reasonably request. Pending the Closing (and if this Agreement is terminated, at all times after the Closing Datedate hereof), Seller WMT shall treat as confidential and will afford promptly not use, submit or disclose to, or make available for inspection by any other person, or allow any other person to Buyer and its agents reasonable access to its books of accountuse or disclose, any information, materials, documents, financial statements or other data relating to IDP, its business or its owners. If this Agreement is terminated, WMT shall promptly return to IDP any and other records (all copies of such material, including accountant's work papers)copies prepared by WMT. Further, informationWMT, employees IDP, IDP Financial, Bynder and auditors to the extent necessary Xxxxxxx agree that they will not disclose or useful for Buyer in connection discuss with any audit, investigation, dispute or litigation or person any information about Xxxxxx-Xxxxx'x arrangements with other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct resellers of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingequipment.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Asset Purchase Agreement (Western Micro Technology Inc)
Access to Information. (a) From the date hereof until the Closing Date, Seller will (i) give, Upon reasonable notice and will cause each Company and each Subsidiary subject to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each Company and each Subsidiary applicable Laws relating to the Businessexchange of information, (ii) furnishthe Company shall, and will shall cause each Company of its Subsidiaries to, afford to the officers, employees and agents and representatives, including any investment banker, financial advisor, attorney, accountant or other advisor, agent, representative, intermediary or affiliate retained in connection with the transactions contemplated by this Agreement (collectively as to each Subsidiary party, its “Representatives”) of Parent access, during normal business hours, and upon reasonable prior notice, during the period prior to furnishthe Effective Time, to Buyerall its properties, books, Contracts, commitments and records, and to its counselofficers, financial advisorsemployees and Representatives, auditors and other authorized representatives such financial and operating data and other information relating in each case in a manner not unreasonably disruptive to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct operation of the business of Seller the Company and its Subsidiaries, and, during such period, the Company shall, and shall cause its Subsidiaries to, make available to Parent (i) a copy of each report, schedule, registration statement and other document filed or the Business. Notwithstanding the foregoing, unless required received by TUPE, Buyer shall not have access prior it during such period pursuant to the Closing Date requirements of the federal or state securities Laws (provided, that any document filed by the Company on the SEC’s XXXXX filing system shall (when publicly available) be deemed to personnel records have been made available to Parent for purposes of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories or this Section 7.1) and (ii) all other information concerning its business, properties and personnel as Parent may reasonably request. Neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would (x) jeopardize the attorney-client privilege of, (y) contravene any Law applicable to, or (z) violate any obligation (existing on the date hereof) with respect to confidentiality of, in each case, the institution in possession or control of such information. The parties agree to collaborate to make alternative disclosure arrangements, if appropriate, under circumstances in which in Seller's good faith opinion is sensitive or the disclosure restrictions of which could subject any Company or any Subsidiary to risk of liabilitythe preceding sentence apply.
(b) On and after Parent shall hold all information furnished by the Closing Date, Seller will afford promptly Company or any of its Subsidiaries or Representatives pursuant 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 Section 7.1(a) in confidence to the extent necessary or useful for Buyer required by, and in connection with any auditaccordance with, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct provisions of the business of Seller. Buyer shall bear all of Confidentiality Agreement, dated May 27, 2011, between Parent and the out-of-pocket costs and expenses Company (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing“Confidentiality Agreement”).
(c) Sellers and No investigation by Parent or its Representatives shall constitute a waiver of or otherwise affect the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Lettersrepresentations, includingwarranties, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors covenants or agreements of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerCompany set forth herein.
Appears in 1 contract
Access to Information. (a) From the date hereof until Prior to the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to give, BuyerPurchaser, its counselAffiliates, financial advisorspartners and sources of financing shall be entitled, auditors through its or their officers, employees and other authorized representatives reasonable access (including its or their legal advisors and accountants), to make such investigation of any and all of the officespremises, properties, Stations, Contracts, businesses and operations of the Companies and the Subsidiaries and such examination of the books and records of Sellerthe Companies and the Subsidiaries as Purchaser reasonably requests and to make extracts and copies of such books and records, each Company including, for purposes of assisting Purchaser with its transition planning, with respect to the accounting systems used to process business transactions (including general ledger, accounts payable, payroll, fixed assets, program rights and each Subsidiary operating systems); provided, that such examination shall not include (i) bids, letters of intent, expressions of interest, or other proposals received from others in connection with the transactions contemplated by this Agreement or otherwise and information and analyses relating to the Businesssuch communications, or (ii) furnishany information, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 would jeopardize any Company legal privilege available to Seller, the Companies or any Subsidiary of their respective Affiliates relating to risk such information or would cause Seller, the Companies or any of liability.
(b) On and after the Closing Datetheir respective Affiliates to breach a confidentiality obligation by which it is bound. Furthermore, Seller will afford promptly shall cause the Companies and the Subsidiaries to Buyer and its agents reasonable provide access to its books of accountthe premises and property and to provide assistance, financial at Purchaser’s cost and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful expense for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the documented out-of-pocket costs expenses, as reasonably requested by Purchaser prior to Closing to assist Purchaser in implementing the systems necessary to perform all activities listed on Schedule 5.4(b) of the Disclosure Schedules under “Seller-Level Assets Used in the Operation of the Business” by Closing. Any such investigation, access, assistance and expenses (including attorneys' feesexamination shall be conducted during regular business hours and under commercially reasonable circumstances and shall be subject to restrictions under applicable Law. Seller shall, but excluding reimbursement for general overheadand shall cause the Companies and their respective officers, salaries employees, consultants, agents, accountants, attorneys and employee benefits) actually other representatives of the Companies and reasonably incurred the Subsidiaries to, cooperate with Purchaser and Purchaser’s representatives in connection with the foregoing.
(c) Sellers such investigation, access, assistance and examination, and Purchaser and its representatives shall cooperate with Seller, the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using their respective representatives and shall use their commercially reasonable efforts to prepare and deliver such financial and statistical information relating minimize any disruption to the Business as may be reasonably requested in connection with the Debt Financingsbusiness of Seller, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access or the Subsidiaries. Purchaser agrees to diligence materials and appropriate personnel to allow lenders and their representatives to complete all abide by any safety rules or rules of conduct reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred imposed by Seller, the Companies or the operator of such properties, as the case may be, with respect to Purchaser’s access and any information furnished to Purchaser, its Affiliates, partners and sources of financing or its and their representatives pursuant to this Section 7.1. Purchaser shall indemnify, defend and hold harmless Seller, the Companies and the Subsidiaries in connection with and their respective officers, directors, employees and agents from and against any and all Losses asserted against or suffered by them relating to, resulting from, or arising out of, examinations, access or assistance or inspections made by Purchaser, its Affiliates, partners and sources of financing or its and their representatives pursuant to this Section 7.1, except to the foregoing extent such Losses relate to, result from or arise out of, the gross negligence or willful misconduct of Seller, the Companies or the Subsidiaries. Notwithstanding anything to the contrary contained herein, prior to the Closing, without the prior written consent of Seller, which may be withheld for any reason, (i) Purchaser shall be paid not contact any suppliers to, or reimbursed promptly following demand thereforcustomers of, by Buyerthe Companies, the Subsidiaries or their respective Affiliates, and (ii) Purchaser shall have no right to perform invasive or subsurface investigations of the properties or facilities of any of the Companies or the Subsidiaries.
Appears in 1 contract
Access to Information. (a) From the date hereof until the Closing Date, Seller will subject to any applicable Law, the attorney-client or other legal privileges, upon reasonable prior notice, the Company shall, and shall cause each of the Transferred Subsidiaries and each such Person’s respective Representatives to, (i) giveafford the Representatives of the Acquiror reasonable access, and will cause each Company and each Subsidiary to giveduring normal business hours, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, facilities, books and records of Seller, each the Company and each Subsidiary relating to the BusinessTransferred Subsidiaries, (ii) furnish, and will cause each Company and each Subsidiary furnish to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives the Representatives of the Acquiror such additional financial and operating operational data and other information relating regarding the Company and the Transferred Subsidiaries as the Acquiror may from time to the Business as such Persons may time reasonably request and (iii) instruct make available to the employeesRepresentatives of the Acquiror the employees of the Company and the Transferred Subsidiaries whose assistance and expertise is relevant to assist the Acquiror in connection with the Acquiror’s preparation to integrate the Company, counsel the Transferred Subsidiaries and financial advisors their businesses and personnel into the Acquiror’s organization following the Closing; provided, however, that the reasonableness of Seller such access and requests shall be determined by taking into account, among other considerations, the sensitive nature of the transactions contemplated by this Agreement; provided, further, that such investigation shall not unreasonably interfere with any of the businesses or any operations of the Company or any Subsidiary to cooperate with Buyer in its investigation the Transferred Subsidiaries; provided, further, that the auditors and independent accountants of the Business, including (without limitation) Company and the Transferred Subsidiaries shall not be obligated to make any Phase I environmental investigations work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to properties used such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants. If so reasonably requested by the Business. Any investigation Company, the Acquiror shall enter into a customary joint defense agreement in form and substance reasonably acceptable to the Acquiror with any one or more of the Sellers, the Company and the Transferred Subsidiaries with respect to any information to be provided to the Acquiror pursuant to this Section 6.02(a). The Acquiror shall be conducted reimburse the Company promptly for any reasonable out-of-pocket third-party expenses (but excluding third-party legal fees) incurred by the Company and any of its Affiliates in such manner as not to interfere unreasonably complying with the conduct any request by or on behalf of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company Acquiror or any Subsidiary relating to individual performance or evaluation records, medical histories or other information which of its Affiliates in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liabilityconnection with this Section 6.02(a).
(b) On and after the Closing Date, Seller 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 In addition to the extent necessary or useful provisions of Section 6.03, for Buyer a period of six (6) years post-Closing, in connection with (x) any auditresponse to the request or at the direction of a Governmental Authority, investigation(y) the preparation of Tax Returns or other documents related to Tax matters and (z) any claims made by or against the Sellers (as they relate to the Company or the Transferred Subsidiaries), dispute subject to any applicable Law, the attorney-client or litigation or any other legal privileges and contractual confidentiality obligations, upon reasonable prior notice, the Acquiror shall, and shall cause the Company and the Transferred Subsidiaries to, afford the Sellers’ Representative and each Seller and its Affiliates and Representatives reasonable access, during normal business purpose hours, to the pre-Closing books and records of the Company and the Transferred Subsidiaries (including, for the avoidance of doubt, Tax Returns and other information and documents relating to the BusinessTax matters); provided provided, however, that any such access by Buyer investigation shall not unreasonably interfere with the conduct business or operations of the business Acquiror or any of Seller. Buyer shall bear all its Affiliates; and provided, further, that the auditors and independent accountants of the out-of-pocket costs Acquiror or its Affiliates shall not be obligated to make any work papers available to any Person unless and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries until such Person has signed a customary confidentiality and employee benefits) actually hold harmless agreement relating to such access to work papers in form and substance reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree acceptable to provide such cooperation as may be auditors or independent accountants. If so reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by Acquiror, each Seller shall, and shall cause its Affiliates (as applicable) to, enter into a customary joint defense agreement with any one or more of the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda Acquiror and rating agency presentations its Affiliates with respect to any information to be provided to such Seller or its Affiliates or Representatives pursuant to this Section 6.02(b). Each Seller shall reimburse the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available Acquiror promptly for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All any reasonable out-of-pocket expenses incurred by Seller, the Companies Acquiror and its Affiliates in complying with any request by or any Subsidiaries on behalf of such Seller or its Affiliates or Representatives in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthis Section 6.02(b).
Appears in 1 contract
Access to Information. Each of Parent and Merger Sub acknowledges and agrees that it (a) From has had an opportunity to discuss and ask questions regarding the date hereof until business of the Closing Date, Seller will (i) give, and will cause each Company and each Subsidiary to giveits Subsidiaries with the management of the Company, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable (b) has had access to the offices, properties, books and records of Sellerthe Company, the “data room” maintained by the Company for purposes of the transactions contemplated by this Agreement and such other information as it has desired or requested to review and (c) has conducted its own independent investigation of the Company and its Subsidiaries and the transactions contemplated hereby, and has not relied on an representation or warranty by any Person regarding the Company and its Subsidiaries, except as expressly set forth in Article III. Without limiting the foregoing, except for the representations and warranties set forth in Article III of this Agreement or in any certificate delivered in connection with this Agreement, each Company of Parent and each Subsidiary relating to Merger Sub further acknowledges and agrees that none of the Business, (ii) furnish, and will cause each 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 Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary of its shareholders, directors, officers, Affiliates, the Manager and its Affiliates, advisors, agents or other Representatives has made any representation or warranty concerning any estimates, projections, forecasts, business plans or other forward-looking information regarding the Company, its Subsidiaries or their respective businesses and operations. Each of Parent and Merger Sub hereby acknowledges that there are uncertainties inherent in attempting to cooperate develop such estimates, projections, forecasts, business plans and other forward-looking information with Buyer in its investigation which Parent and Merger Sub are familiar, that Parent and Merger Sub are taking full responsibility for making their own evaluation of the Businessadequacy and accuracy of all estimates, projections, forecasts, business plans and other forward-looking information furnished to them (including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct reasonableness of the assumptions underlying such estimates, projections, forecasts, business of Seller or plans and other forward-looking information), and that Parent and Merger Sub will have no claim against the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation recordsof its shareholders, medical histories directors, officers, Affiliates, the Manager and its Affiliates, advisors, agents or other information which in Seller's good faith opinion is sensitive or the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations Representatives with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerthereto.
Appears in 1 contract
Samples: Merger Agreement (Fly Leasing LTD)
Access to Information. (a) From During the date hereof until Pre-Closing Period, upon reasonable prior written notice (and subject to any limitations as a result of the Closing Datecoronavirus (COVID-19) pandemic), Seller will the Company shall, and shall cause each of the Company Subsidiaries to, at the sole cost and expense of Buyer, (i) giveafford Buyer and its Representatives reasonable access, and will cause each Company and each Subsidiary to giveduring normal business hours, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records and Tax Returns of Seller, each the Company and each Subsidiary relating to the BusinessCompany Subsidiaries, (ii) furnish, furnish to Buyer and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives Representatives such additional financial and operating data and other information relating to regarding the Business as such Persons Buyer or its Representatives may from time to time reasonably request for purposes of consummating the Transactions, and (iii) instruct the make available to Buyer and its Representatives, during normal business hours, those directors, officers, employees, counsel internal auditors, accountants and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation other Representatives of the BusinessCompany and the Company Subsidiaries, including (without limitation) any Phase I environmental investigations relating to properties used except, in the Business. Any investigation pursuant to this case of (i) and (ii), as set forth in Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability5.02(b).
(b) On and after Notwithstanding anything in this Agreement to the Closing Datecontrary,
(i) (A) in no event shall the Company, Seller will afford promptly the Company Subsidiaries or their respective Affiliates be obligated to Buyer and its agents reasonable provide any (1) access or information in violation of any applicable Law, (2) information the disclosure of which, in the judgment of legal counsel, could reasonably be expected to its books of account, financial and other records jeopardize any applicable privilege (including accountant's work papersthe attorney-client privilege) available to any of the Company, the Company Subsidiaries or any of their respective Affiliates relating to such information, or (3) information the disclosure of which would cause the Company, any of the Company Subsidiaries or any of their respective Affiliates to breach a confidentiality obligation to which it is bound; provided, that the Parties shall use commercially reasonable efforts to make alternative arrangements for such disclosure where the restrictions in the preceding clauses (1), information(2) or (3) apply, employees and auditors to the extent necessary (B) any access or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access investigation contemplated by Buyer Section 5.02(a) shall not unreasonably interfere with the conduct any of the business businesses, personnel or operations of Seller. Buyer shall bear all any of the out-of-pocket costs Company, the Company Subsidiaries or any of their respective Affiliates or the Business; and
(ii) the auditors and expenses (including attorneys' feesaccountants of any of the Company, but excluding reimbursement for general overhead, salaries the Company Subsidiaries or any of their respective Affiliates or the Business shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and employee benefits) actually accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably incurred in connection with the foregoingacceptable to such auditors or accountants.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably If so requested by the Company, on the one hand, or Buyer, on the other hand, Buyer in timely obtaining or the Debt Financings contemplated by Company, as the Commitment Letterscase may be, includingshall enter into a customary joint defense agreement or common interest agreement with one or more of the Company, without limitationthe Company Subsidiaries or any of their respective Affiliates, (A) assisting in the preparation of offering circularsor Buyer, confidential information memoranda and rating agency presentations as applicable, with respect to the Debt Financingsany information provided to Buyer, (B) using reasonable efforts or to prepare and deliver such financial and statistical information relating which Buyer gains access, pursuant to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies this Section 5.02 or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerotherwise.
Appears in 1 contract
Access to Information. (a) From Subject to Section 7.4(b), from the date hereof of this Agreement until the Closing Dateearlier to occur of the Effective Time or the termination of this Agreement pursuant to Section 9.1, Seller will the Company shall, and shall instruct each Company Subsidiary and each of its and their respective Representatives (collectively, “Company Representatives”) to: (i) give, provide to Parent and will cause each Company Merger Sub and each Subsidiary to giveof their respective Representatives (collectively, Buyer, its counsel, financial advisors, auditors and other authorized representatives “Parent Representatives”) reasonable access during normal business hours, upon reasonable prior notice, to the officesofficers, employees, properties, offices, district managers and other facilities of the Company or such Company Subsidiary and to the books and records of Seller, each Company thereof and each Subsidiary relating to the Business, (ii) furnishfurnish or cause to be furnished such information concerning the business, properties, Contracts, assets, liabilities, personnel and will cause each other aspects of the Company and each Subsidiary to furnishthe Company Subsidiaries as Parent, 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 Merger Sub or any Parent Representative may reasonably request and within a reasonable period of time following such request; provided, however, until the Effective Time, the Company shall not be required to (iiix) instruct furnish, or provide any access to, any information to any Person not a party to, or otherwise covered by, the employees, counsel and financial advisors NDA or any similar agreement with the Company with respect to such information or (y) provide access to or furnish any information if doing so would unreasonably disrupt the operations of Seller the Company or any Company Subsidiary, would violate any applicable Law or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records would cause a violation of any agreement to which the Company or any Company Subsidiary relating is a party (provided that the Company shall have used commercially reasonable efforts to individual performance or evaluation records, medical histories or other information which in Seller's good faith opinion is sensitive or obtain a waiver from the disclosure of which could subject counterparty to any such agreement so as to allow the Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller will afford promptly to Buyer and its agents reasonable provide access to its books of account, financial and other records (including accountant's work papersor furnish the relevant information), informationor where such access to information would involve the waiver or loss of an attorney-client or work product privilege so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not compromise or waive such privilege with respect thereto; provided, employees further, that such access and auditors information shall be disclosed or granted, as applicable, subject to the execution of a joint defense agreement in customary form, to external counsel for Parent to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Sellerpurpose of complying with applicable Laws, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerincluding Antitrust Laws.
Appears in 1 contract
Access to Information. (a) From the date hereof of this Agreement until the Closing Date, Seller will upon reasonable prior notice, GECF shall, and shall cause the Company and its Subsidiaries to, (i) giveafford the Representatives of the Acquiror (and certain other persons in accordance with Section 6.02(a) of the Disclosure Letter) reasonable access, and will cause each Company and each Subsidiary to giveduring normal business hours, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access to the offices, properties, books and records of Seller, each the Company and each Subsidiary relating to the Business, its Subsidiaries and (ii) furnish, furnish to the Representatives of the Acquiror (and will cause each Company and each Subsidiary to furnish, to Buyer, its counsel, financial advisors, auditors and certain other authorized representatives persons in accordance with Section 6.02(a) of the Disclosure Letter) such additional financial and operating data and other information regarding the Company and its Subsidiaries as the Acquiror may from time to time reasonably request for any reasonable business purpose, including for purposes of preparing to own the Shares and operate the Company and its Subsidiaries following the Closing; provided, however, that (x) in no event shall GECF, the Company, its Subsidiaries or their respective Affiliates be obligated to provide (1) access or information in violation of applicable Laws, (2) bids, the identity of any bidder, letters of intent, expressions of interest or other proposals received from others in connection with transactions comparable to those contemplated by this Agreement and information and analysis relating to such communications or (3) any information the Business as such Persons may disclosure of which would reasonably request and (iii) instruct be expected to cause the employeesloss of any attorney-client privilege available to GECF, counsel and financial advisors of Seller or any the Company or any Subsidiary of their respective Subsidiaries relating to cooperate such information or would cause GECF, the Company or any of their respective Subsidiaries to breach a confidentiality obligation to which it is bound, and (y) such investigation shall not unreasonably interfere with Buyer in its investigation any of the Businessbusinesses, including (without limitation) personnel or operations of GECF, the Company, its Subsidiaries or any Phase I environmental investigations of their Affiliates; and provided, further, that the auditors and accountants of GECF, the Company, its Subsidiaries or any of their Affiliates shall not be obliged to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to properties used such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by GECF, the Business. Any investigation Acquiror shall enter into a customary joint defense agreement with GECF, the Company, its Subsidiaries or their respective Affiliates with respect to any information to be provided to the Acquiror pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct 6.02(a). In furtherance of the business parties’ intent as set forth in this Section 6.02(a), and in order to facilitate the timely application of Seller the provisions of Section 6.01, each of GECF and the Acquiror shall appoint one principal Representative for each country in which the Company and its Subsidiaries operate. The Representatives of each party will cooperate in good faith to provide any requested information, or the Businessany required consents or approvals, as contemplated by Section 6.01 or this Section 6.02(a). Notwithstanding The Representatives will meet in person or by telephone at least weekly, and at such other times as either Representative may reasonably request in order to address any outstanding requests, inquiries or disputes relating to the foregoing. Subject to reasonable limitations on access to protect competitively sensitive information, unless required by TUPE, Buyer shall not the Representatives will have access prior to each of the Closing Date meetings of the board of directors and to personnel records every committee of any the Company and the Company’s Subsidiaries, including the credit committee, audit committee or any Subsidiary relating to individual performance other committee of the board of directors, or evaluation records, medical histories or such other information which in Seller's good faith opinion is sensitive or committees as the disclosure of which could subject any Company or any Subsidiary to risk of liabilityRepresentative may reasonably request.
(b) On From and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose purpose, including the preparation of Tax Returns, financial statements, United States Securities and Exchange Commission or other Governmental Authority reporting obligations, or the determination of any matter relating to the Businessrights or obligations of GECF or any of its Affiliates under any of the Transaction Agreements, upon reasonable prior notice, and except as determined in good faith to be necessary to (i) ensure compliance with any applicable Law, (ii) preserve any applicable privilege (including the attorney-client privilege), or (iii) comply with any contractual confidentiality obligations, the Acquiror shall, and shall cause each of the Company, its Subsidiaries, their respective Affiliates, and its Representatives to: (A) afford the Representatives of GECF and its Affiliates reasonable access, during normal business hours, to the properties, books and records of the Acquiror and its Affiliates in respect of the Company, and its Subsidiaries, (B) furnish to the Representatives of GECF and its Affiliates such additional financial and other information regarding the Company, its Subsidiaries and their respective Affiliates as GECF or its Representatives may from time to time reasonably request and (C) make available to the Representatives of GECF and its Affiliates those employees of the Acquiror and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence may be necessary to assist GECF, GECC or its Affiliates in connection with its inquiries for any of the purposes referred to above, including the presence of such persons as witnesses in hearings or trials for such purposes; provided provided, however, that any such access by Buyer investigation shall not unreasonably interfere with the conduct business or operations of the business Acquiror or any of Seller. Buyer shall bear all its Affiliates; and provided, further, that the auditors and accountants of the out-of-Acquiror or its Affiliates shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. GECF shall reimburse the Acquiror for reasonable and documented out of pocket costs expenses incurred by the Acquiror, the Company and expenses (including attorneys' feesthe Subsidiaries pursuant to the obligations in the preceding sentence. If so requested by the Acquiror, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection GECF or one its Affiliates shall enter into a customary joint defense agreement with the foregoingAcquiror and its Affiliates with respect to any information to be provided to GECF pursuant to this Section 6.02(b).
(c) Sellers Notwithstanding anything in this Agreement to the contrary, GECF shall not be required, prior to the Closing, to disclose, or cause or seek to cause the disclosure of, to the Acquiror or its Affiliates or Representatives (or provide access to any properties, books or records of GECF or any of its Affiliates that would reasonably be expected to result in the disclosure to such persons or others of) any confidential information relating to trade secrets or proprietary know-how, nor shall GECF be required to permit or cause or seek to cause others to permit the Acquiror or its Affiliates or Representatives to have access to or to copy or remove from the properties of GECF or any of its Affiliates any documents, drawings or other materials that might reveal any such confidential information.
(d) Prior to the Closing, upon reasonable prior notice, each of GECC and GECF shall use its commercially reasonable efforts to cause the Companies agree Company and their respective Representatives, in connection with any offering of securities by the Acquiror, to: (i) have the Company’s CEO or CFO or other appropriate senior executives participate in meetings, due diligence sessions and road shows, (ii) assist in preparing offering memoranda, prospectuses and similar documents, (iii) obtain comfort letters of accountants and legal opinions and (iv) continue to provide and otherwise make available documents and information (including audited and unaudited financial statements) relating to the Company and its Subsidiaries; provided that such cooperation as may be reasonably requested by Buyer actions shall not unreasonably interfere with any of the businesses, personnel or operations of GECF, the Company, its Subsidiaries or any of their Affiliates. Notwithstanding the foregoing, (a) nothing contained in timely obtaining this Section 6.02(d) shall give rise to any fee, cost or expense of GECC, GECF or the Debt Financings contemplated Company or any of its Subsidiaries that is not advanced or promptly reimbursed by the Commitment LettersAcquiror and (b) no Representative of GECC, includingGECF, without limitationthe Company, its Subsidiaries or any of their respective Affiliates shall be obligated to take any action or refrain from taking any action in connection with any offering of securities by the Acquiror if such action may expose such Person to liability under the applicable securities laws, unless and until the Acquiror agrees to defend, indemnify and hold harmless such Representative to the fullest extent permitted by applicable Law (A) assisting and in the preparation of offering circulars, confidential information memoranda and rating agency presentations no event on terms less favorable to such Representative than those in effect with respect to each Representative of the Debt Financings, (BAcquiror) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in respect of any acts or omissions in connection with any offering of securities by the Debt FinancingsAcquiror, (C) making appropriate employees, accountants and advisors including any Action brought by any purchaser of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies Acquiror’s or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerits Affiliates’ securities.
Appears in 1 contract
Samples: Stock Purchase Agreement (Grupo Aval Acciones Y Valores S.A.)
Access to Information. (a) From the date hereof until to the Closing DateEffective Time, Seller will (i) givethe Company shall, and shall cause its directors, officers, employees, auditors, counsel, financial advisors and other agents, to, upon reasonable notice, to the extent it will not cause each Company and each Subsidiary to givea disruption in the business of the Company, Buyer, its counsel(x) allow all designated officers, financial advisors, attorneys, accountants and other representatives of the Purchaser such access as the Special Committee shall determine is reasonable to their officers, agents, employees, offices, records, files, correspondence, audits and properties, as well as to all information relating to its commitments, contracts, titles and financial position, or otherwise pertaining to the business and affairs of the Company and its subsidiaries; (y) furnish to the Purchaser and its aforementioned representatives such financial, operating and other data and other information as the Special Committee has determined such persons may reasonably request; and (z) instruct certain of its employees, counsel, auditors and financial advisors and other authorized representatives reasonable access agents to cooperate with the Purchaser and its investigation of the business of the Company and its subsidiaries in such ways as the Special Committee shall determine are reasonable. From the date hereof to the officesEffective Time, properties, books and records of Seller, each Company and each Subsidiary relating the Purchaser shall (a) furnish to the Business, (ii) furnish, and will cause each Company and each Subsidiary to furnish, to BuyerCompany, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Business as such Persons persons may reasonably request request, and (iiib) instruct the employeesits officers, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate reasonably with Buyer the Company in its investigation of the Business, including businesses of the Purchaser. Except as may be required (without limitationi) by Laws; (ii) in connection with fulfilling its obligations under the terms of this Agreement; (iii) in connection with the defense of or other involvement in any Phase I environmental investigations claim or adversarial proceeding relating to properties used the Company, the Purchaser or the transactions contemplated by this Agreement, whether among the Parties or involving any third party; or (iv) as otherwise consented to in writing by the other party, the parties shall, and shall cause their officers, employees, agents, consultants and affiliates to, hold all information obtained pursuant to this Agreement in confidence and in the Businessevent of termination of this Agreement for any reason, each party shall promptly return or destroy all nonpublic documents obtained from the other party and any copies made of such documents and all documentation and other material prepared based on written nonpublic information furnished by the other party shall be destroyed. Any If either party receives a request to disclose all or any part of the information obtained pursuant to this Agreement, that party will (i) promptly notify the other party of the existence, terms and circumstances surrounding such request so that the other party may seek a protective order or other appropriate remedy and (ii) in the event no such protective order or other remedy is obtained and disclosure of such information is required, at the other party’s cost and expense, exercise all commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded such portion of the disclosed information that the other party so designates. No information or knowledge obtained in any investigation pursuant to this Section shall 6.3 will affect or be conducted in such manner as not deemed to interfere unreasonably with modify any representation or warranty contained herein or the conduct conditions to the obligations of the business of Seller or parties to consummate the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityMerger.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Access to Information. (a) From The Companies and the Operating Partnerships shall, and shall cause the Subsidiaries to, afford to each Investor (including for such purposes only those Permitted Third Party Transferees with an investment in the Companies of at least $20 million) and to the officers, employees, accountants, counsel, financial advisors and other representatives of such Investor, reasonable access during normal business hours from the date hereof until and after the Closing Dateto all the properties, Seller will books, contracts, commitments, personnel, reports and records of or relating to the Companies or the Subsidiaries, and the Companies and the Operating Partnerships shall, and shall cause the Subsidiaries to, furnish promptly to the Investors, any financing source identified by the Investors in connection with the transactions contemplated hereby and to any other person that the Investor may reasonably request (i) givea copy of each report, and will cause each Company and each Subsidiary to giveschedule, Buyer, its counsel, financial advisors, auditors registration statement and other authorized representatives reasonable access document filed by it during such period pursuant to the offices, properties, books and records requirements of Seller, each Company and each Subsidiary relating to the Businessfederal or state securities laws, (ii) furnishsuch weekly, monthly, quarterly, annual and will cause each Company and each Subsidiary to furnish, to Buyer, its counselother operating reports, financial advisors, auditors reporting packages and other authorized representatives such operational and/or financial and operating data and other information relating sent to management or the Board of Directors of the Companies or to the Business as such Persons may reasonably request banks with whom the Companies and the Subsidiaries maintain credit facilities or lines of credit and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories or all other information which in Seller's good faith opinion is sensitive or concerning its business, properties and personnel as the disclosure of which could subject any Company or any Subsidiary to risk of liabilityInvestors may reasonably request.
(b) On In addition to the foregoing, the Companies and after the Closing DateOperating Partnership shall, Seller will afford promptly and shall cause the Subsidiaries to, permit the Investors to Buyer and its agents reasonable access monitor the status of the Year 2000 Plan in the following manner, without limitation, by: (i) providing semi-monthly updates to its books the designated representatives of account, financial and other records the Investors on the progress of the Year 2000 Plan (including accountant's work papersthe amount of expenditures made on such plan to that date), information(ii) notifying the Investors of whether the Companies or any of the Subsidiaries intend to deviate in any material respects from the Year 2000 Plan, employees (iii) if a deviation from the Year 2000 Plan is contemplated, consulting with designated representatives of the Investors to determine if such deviation is in the best interest of the Companies, and auditors (iv) coordinating with the Investors and their representatives to develop modifications, if any, to the extent necessary or useful for Buyer in connection with any auditYear 2000 Plan. For purposes of this Section 6.12(b), investigation, dispute or litigation or any other reasonable business purpose relating the Investors' designated representatives shall be such persons as the Investors shall identify to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingCompanies.
(c) Sellers and No review pursuant to this Section 6.12 shall subject the Companies agree Investors or their representatives or agents to provide such cooperation as may be reasonably requested by Buyer in timely obtaining any responsibility for the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect Companies' compliance or failure to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection comply with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred Year 2000 Plan or affect any representation or warranty given by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerOperating Partnerships hereunder.
Appears in 1 contract
Samples: Securities Purchase Agreement (Wyndham International Inc)
Access to Information. (a) From and after the date hereof until the earlier of the Closing DateDate and the termination of this Agreement in accordance with its terms, Seller will (i) giveupon reasonable notice, and will cause subject to restrictions contained in any confidentiality agreement to which any Group Company is subject, each Group Company shall provide to Buyer and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives during normal business hours reasonable access to the offices, properties, all books and records of Sellerthe Group Companies (in a manner so as to not interfere with the normal business operations of any Group Company); provided, each that the Group Companies and their respective representatives shall have no obligation to provide Buyer and its representatives access to any books or records to the extent such books and records pertain solely to the Seller and/or its equityholders and, to such extent, any Group Company and each Subsidiary relating its representatives are entitled to withhold access to or redact any portion of such books and records. All of such information shall be treated as confidential information pursuant to the Businessterms of the Confidentiality Agreement, the provisions of which are by this reference hereby incorporated herein and Xxxxx agrees that it shall be bound by the Confidentiality Agreement to the same extent as Fresenius Medical Care AG & Co. KGaA. Notwithstanding anything to the contrary set forth in this Agreement, during the period from the date hereof until the Closing, neither Seller nor any of its Affiliates (including the Group Companies) shall be required to disclose to Buyer or any of its representatives any (a) information (i) to the extent related to the sale or divestiture process conducted by Seller or its Affiliates for the Group Companies vis-à-vis any Person other than Buyer and its Affiliates, or Seller’s or its Affiliates’ (or their representatives’) evaluation of the business of the Group Companies in connection therewith, including projections, financial and other information relating thereto, (ii) furnishif doing so would violate any contract or law to which Seller or any of its Affiliates (including the Group Companies) is a party or is subject or which it reasonably determined upon the advice of counsel could result in the loss of the ability to successfully assert attorney-client and work product privileges, (iii) if Seller or any of its Affiliates, on the one hand, and will cause each Company Buyer or any of its Affiliates, on the other hand, are adverse parties in a litigation and each Subsidiary such information is reasonably pertinent thereto, or (iv) if Seller reasonably determines upon the advice of counsel that such information should not be so disclosed due to furnishits competitively sensitive nature, or (b) any information relating to Buyer, its counsel, financial advisors, auditors and Taxes or Tax Returns other authorized representatives such financial and operating data and other than information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liabilityGroup Companies.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyer.
Appears in 1 contract
Samples: Stock Purchase and Contribution Agreement (Fresenius Medical Care AG & Co. KGaA)
Access to Information. (a) From During the date hereof until period from the Closing Dateexecution of this Agreement through the earlier of the termination of this Agreement pursuant to its terms and the Closing, Seller will the Company (i) giveshall, and will shall cause each Company and each Subsidiary to, subject to give, Buyer, reasonable restrictions imposed from time to time upon advice of counsel respecting any applicable confidentiality agreement with any Person (provided that the Company shall use its counsel, financial advisors, auditors and other authorized representatives reasonable best efforts to obtain waivers under such agreements or implement requisite procedures to enable the provision of reasonable access without violating such agreement), afford representatives of Parent, following notice from Parent to the Company in accordance with this Section 6.4, reasonable access during normal business hours to all properties, offices, books, contracts, commitments and records and such financial (including all working papers) and operating data of the Company and the Company Subsidiaries and all other information concerning its business, properties, books personnel, vendors, landlords/sublandlords, tenants, licensees, franchisees and records of SellerRepresentatives as Parent may reasonably request, each Company and each Subsidiary relating to the Business, (ii) furnishshall furnish to Parent (y) promptly, unaudited monthly consolidated balance sheet of the Company and the Company Subsidiaries for the month then ended and related consolidated statements of earnings, cash flows and stockholders’ equity (which the Company will use reasonable best efforts to furnish within fifteen days after the end of each month), and will cause (z) within a reasonable time, all information (including extracts and copies of books, records, contracts and other documents including a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws) concerning the operations and business of the Company or any Company Subsidiary, including access to its personnel, vendors, landlords/sublandlords, tenants, licensees, franchisees and Representatives as Parent may reasonably request. In conducting any inspection of any properties of the Company and the Company Subsidiaries, neither Parent nor any of its representatives shall (i) contact or have any discussions with any of the Company’s employees, agents, or representatives, unless in each Subsidiary to furnishcase Parent obtains the prior written consent of the Company, to Buyerwhich shall not be unreasonably withheld, its counselor (ii) contact or have any discussions with any of the vendors, financial advisorsfranchisees or licensees of the Company or the Company Subsidiaries or any of the landlords/sublandlords under any of the leases or any of the tenants/subtenants, auditors and other authorized representatives such financial and operating data and other information relating to unless in each case Parent obtains the Business as such Persons may reasonably request and prior written consent of the Company, which shall not be unreasonably withheld, (iii) instruct the employees, counsel and financial advisors of Seller damage any property or any portion thereof, or (iv) perform any onsite procedure or investigation (including any onsite environmental investigation or study) without the Company’s prior written consent, which shall not be unreasonably withheld. Parent shall schedule and coordinate all inspections with the Company and shall give the Company at least three Business Days prior written notice thereof, setting forth the inspection or any Subsidiary materials that Parent or its representatives intend to cooperate with Buyer in its investigation of the Business, including (without limitation) any Phase I environmental investigations relating to properties used in the Businessconduct. Any investigation pursuant to this Section The Company shall be conducted in entitled to have representatives present at all time during any such manner as not to interfere unreasonably with the conduct of the business of Seller or the Businessinspection. Notwithstanding the foregoing, unless neither the Company nor any Company Subsidiary shall be required by TUPE, Buyer shall not have to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the Company or the Company Subsidiaries or contravene any Law or binding agreement entered into prior to the Closing Date to personnel records date of any Company or any Subsidiary relating to individual performance or evaluation records, medical histories or other information this Agreement. The relevant parties will make appropriate substitute disclosure arrangements under circumstances in which in Seller's good faith opinion is sensitive or the disclosure restrictions of which could subject any Company or any Subsidiary to risk of liabilitythe preceding sentence apply.
(b) On and after the Closing Date, Seller will afford promptly All information obtained pursuant to Buyer and its agents reasonable access this Section 6.4 shall continue to its books of account, financial and other records (including accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers and the Companies agree to provide such cooperation as may be reasonably requested by Buyer in timely obtaining the Debt Financings contemplated governed by the Commitment Letters, including, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect to the Debt Financings, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection with the Debt Financings, (C) making appropriate employees, accountants and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by BuyerConfidentiality Agreements.
Appears in 1 contract
Samples: Merger Agreement (Toys R Us Inc)
Access to Information. From the execution of this Agreement and continuing through the earlier of the Termination Date or the Effective Time, each of HDG and the Company shall (and cause each of their subsidiaries to) promptly furnish to the other and the other's accountants, counsel, financial advisors and other representatives all books, contracts, commitments and records (including, without limitation, Tax Returns) of it and, during such period, shall (and cause each of their subsidiaries to) furnish promptly (a) From the date hereof until the Closing Datea copy of each report, Seller will schedule and other document: (i) give, and will cause each Company and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access filed or received by it during such period pursuant to the officesrequirements of federal, properties, books and records of Seller, each Company and each Subsidiary relating to the Businessstate or foreign securities laws, (ii) furnishfiled by it during such period with the SEC in connection with the transactions contemplated by this Agreement, and will cause each 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 Business as such Persons may reasonably request and or (iii) instruct which may have a material effect on its business, properties or personnel and (b) such other information concerning its business, properties and personnel as the employeesother shall reasonably request; provided, counsel and financial advisors of Seller or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Businesshowever, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. Any that, no investigation pursuant to this Section 7.1 shall be conducted in such manner as not negate any representation or warranty made herein or the conditions to interfere unreasonably with the conduct obligations of the business of Seller respective parties to consummate the Merger. All non-public documents and information furnished to HDG, HDG Sub or the Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior to the Closing Date to personnel records of any Company or any Subsidiary relating to individual performance or evaluation recordsCompany, medical histories or other information which in Seller's good faith opinion is sensitive or as the disclosure of which could subject any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Datecase may be, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoing.
(c) Sellers transactions contemplated by this Agreement shall be deemed to have been received, and shall be held by the recipient, in confidence, except that HDG and the Companies agree to provide Company may disclose such cooperation information as may be necessary in connection with seeking the Required Statutory Approvals, the HDG Stockholders' Approval, the Company Stockholders' Approval, the Company Placement and as otherwise provided in that certain bilateral Non-Disclosure Agreement ("NDA"), dated March 23, 1999, by and between HDG and the Company. The Company shall promptly advise HDG, and HDG shall promptly advise the Company, in writing, of any change or the occurrence of any event after the date of this Agreement having, or which, insofar as can reasonably be foreseen, in the future may have, any Material Adverse Effect on the Company, HDG or HDG Sub, as applicable. A7.2 REGISTRATION STATEMENTS, SB-2 AMENDMENT AND PROXY STATEMENT/ PROSPECTUS. HDG shall prepare and file with the SEC as soon as is reasonably practicable after the date hereof, a post-effective amendment to HDG's initial Form SB-2 (the "SB-2 Amendment"), a registration statement (the "J&L Registration Statement") to register all of the common shares underlying the Company Warrants (which registration statement shall be "wrapped around" the SB-2 Amendment pursuant to Rule 429 of the Securities Act), the Registration Statement and Proxy Statement/Prospectus, and any amendments, supplements or schedules thereto, shall use all reasonable efforts to have the Registration Statement, the SB-2 Amendment and the J&L Registration Statement simultaneously declared effective by the SEC as promptly as practicable, and shall distribute the Proxy Statement/Prospectus as necessary. The Company shall promptly furnish to HDG all information, and take such other actions, as may reasonably be requested by Buyer HDG in timely obtaining connection with the Debt Financings preceding sentence and shall cooperate with HDG to effect such preparations, filings and actions. The Company shall also take any action required to be taken under applicable state blue sky or foreign securities laws in connection with the issuance of HDG Common Stock as contemplated by in Article III hereof; provided, however, that HDG shall promptly furnish to the Commitment LettersCompany all information necessary for the Company to comply with such laws, and shall take such other actions, including, without limitation, (A) assisting in the preparation of offering circularsexecuting, confidential information memoranda delivering and rating agency presentations filing any and all documentation necessary to comply with respect to the Debt Financingssuch laws, (B) using reasonable efforts to prepare and deliver such financial and statistical information relating to the Business as may be reasonably requested in connection shall cooperate with the Debt FinancingsCompany to effect such preparations, (C) making appropriate employees, accountants filings and advisors of the Companies available for due diligence meetings and for participation in meetings with rating agencies and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyeractions.
Appears in 1 contract
Access to Information. (a) From and after the date hereof until Distribution Time, the Closing Date, Seller will (i) giveMVT Parties will, and will cause each Company of their Subsidiaries to, to the extent that such information has not previously been delivered pursuant to Section 6.01, afford to the MI Parties and each Subsidiary to give, Buyer, its counsel, financial advisors, auditors and other authorized representatives their Representatives (at the MI Parties’ expense) reasonable access and duplicating rights during normal business hours and upon reasonable advance notice to all Information within the MVT Parties’ possession or control or in the possession or control of one of their Subsidiaries to the offices, properties, books and records of Seller, each Company and each Subsidiary extent relating to the MI Parties, any of their Subsidiaries or the MI Business, insofar as such access is reasonably required by the MI Parties or any of their Subsidiaries; subject to the provisions below regarding Privileged Information.
(iib) furnishFrom and after the Distribution Time, the MI Parties will, and will cause each Company and each Subsidiary to furnishof their Subsidiaries to, to Buyerthe extent that such information has not previously been delivered pursuant to Section 6.01, its counsel, financial advisors, auditors afford to the MVT Parties and other authorized representatives such financial their Representatives (at the MVT Parties’ expense) reasonable access and operating data duplicating rights during normal business hours and other information upon reasonable advance notice to all Information within the MI Parties’ possession or control or in the possession or control of one of their Subsidiaries to the extent relating to the Business MVT Parties, any of their Subsidiaries or the MVT Business, insofar as such Persons may access is reasonably request and (iii) instruct required by the employees, counsel and financial advisors of Seller MVT Parties or any Company or any Subsidiary to cooperate with Buyer in its investigation of the Businesstheir Subsidiaries, including (without limitation) any Phase I environmental investigations relating to properties used in the Business. 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 Business. Notwithstanding the foregoing, unless required by TUPE, Buyer shall not have access prior subject to the Closing Date to personnel records of any Company or any Subsidiary 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 any Company or any Subsidiary to risk of liability.
(b) On and after the Closing Date, Seller 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 necessary or useful for Buyer in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller. Buyer shall bear all of the out-of-pocket costs and expenses (including attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) actually and reasonably incurred in connection with the foregoingprovisions below regarding Privileged Information.
(c) Sellers Without limiting the foregoing, Information may be requested under this Article VI for audit, accounting, claims, litigation, insurance, environmental and safety and tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations and for performing this Agreement and the Companies agree to provide such cooperation as transactions contemplated hereby.
(d) In furtherance of the foregoing:
(i) Each party acknowledges that (A) each of the MVT Parties and the MI Parties (and the members of the MVT Group and the MI Group, respectively) has or may obtain Privileged Information; (B) there are or may be reasonably requested by Buyer a number of actions affecting one or more of the members of the MVT Group and the MI Group; (C) the parties may have a common legal interest in timely obtaining actions, in the Debt Financings Privileged Information, and in the preservation of the confidential status of the Privileged Information; and (D) each of the MVT Parties and the MI Parties intends that the transactions contemplated by the Commitment LettersTransaction Agreements and any transfer of Privileged Information in connection therewith shall not operate as a waiver of any potentially applicable privilege.
(ii) Each of the MVT Parties and the MI Parties agrees, includingon behalf of itself and each member of the Group of which it is a member, without limitation, (A) assisting in the preparation of offering circulars, confidential information memoranda and rating agency presentations with respect not to disclose or otherwise waive any privilege attaching to any Privileged Information relating to the Debt Financingsbusiness of the other Group without providing prompt written notice to and obtaining the prior written consent of the other, which consent will not be unreasonably withheld, delayed or conditioned. In the event of a disagreement between any member of the MVT Group and/or any member of the MI Group concerning the reasonableness of withholding such consent, no disclosure will be made prior to a final, nonappealable resolution of such disagreement by a court of competent jurisdiction.
(Biii) using reasonable efforts Upon any member of the MVT Group or any member of the MI Group receiving any subpoena or other compulsory disclosure notice from a court, other Governmental Entity or otherwise that requests disclosure of Privileged Information, in each case relating to prepare the business of the other Group, the recipient of the notice will promptly provide to the other party a copy of such notice, the intended response, and deliver such financial and statistical all materials or information relating to the Business other Group that might be disclosed. In the event of a disagreement as may be reasonably requested to the intended response or disclosure, unless and until the disagreement is resolved as provided in connection with Section 6.02(d)(ii), the Debt Financingsparties will cooperate to assert all defenses to disclosure claimed by either Group, (C) making appropriate employees, accountants at the cost and advisors expense of the Companies available for due diligence meetings Group claiming such defense to disclosure, and for participation in meetings with rating agencies shall not disclose any disputed documents or information until all legal defenses and prospective lenders and investors, (D) providing timely access to diligence materials and appropriate personnel to allow lenders and their representatives to complete all reasonably required diligence and (E) providing reasonable assistance with respect to the review and granting claims of security interests in collateral for the Debt Financings. All reasonable out-of-pocket expenses incurred by Seller, the Companies or any Subsidiaries in connection with the foregoing shall be paid or reimbursed promptly following demand therefor, by Buyerprivilege have been finally determined.
Appears in 1 contract
