Access to Information. (a) During the Pre-Closing Period, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company. (b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Millicom International Cellular Sa)
Access to Information. (a) During From and after the Predate hereof and provided that the Purchaser (and its subsidiaries, taken together) holds, directly or indirectly not less than 10% of the issued and outstanding Company Common Stock (calculated on a fully diluted basis), the Company will, and will cause the Subsidiaries, and each of its and their respective officers, directors, employees, counsel, advisors and representatives (collectively, the "Company Representatives") to, provide Purchaser and its officers, employees, counsel, advisors and representatives (collectively, the "Purchaser Representatives") reasonable access, during normal business hours and upon reasonable notice, to the officers, employees, offices and other facilities and to the books and records of the Company and the Subsidiaries, as will permit Purchaser to make inspections of such as any of them may reasonably require and will cause the Company Representatives and the Subsidiaries to furnish Purchaser and the Purchaser Representatives to the extent available with such other information with respect to the business, operations and prospects of the Company and the Subsidiaries as Purchaser may from time to time reasonably request; provided, however, that the Company shall not be re- quired to provide the Purchaser or the Purchaser Representatives access to any such information if the Company reasonably believes, upon advice of counsel, that not providing such information to the Purchaser or the Purchaser Representatives is advisable: (i) to preserve attorney-Closing Periodclient privilege, Sellers (ii) to protect proprietary information relating to DepoMed Development, Ltd. or (iii) due to a conflict of interest between the Company and the Purchaser. In the event of termination of this Agreement for any reason, Purchaser will, and will cause the Purchaser Representatives to, return to the Company or destroy all copies of written information furnished by the Company or any of the Company Representatives to Purchaser or the Purchaser Representatives and destroy all memoranda, notes and other writings prepared by Purchaser or the Purchaser Representatives based upon or including the information furnished by the Company or any of the Company Representatives to Purchaser or the Purchaser Representatives (and Purchaser will certify to the Company that such destruction has occurred). Subject to Section 3.01(b) hereof, Purchaser shall, and shall cause the Acquired Companies Purchaser Representatives to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of hold the Acquired Companies’ properties, assets, books and records, (ii) all senior management of information provided by the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation Company pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) Section 6.01 in confidence in accordance with the terms of the Confidentiality Agreement.
(b) From the date hereof until the Closing Date, Purchaser will, and will cause its Subsidiaries, and each of the Purchaser Representatives to, provide the Company and any Company Representatives access to Purchaser's publicly available documents.
Appears in 1 contract
Access to Information. (ai) During the Pre-Closing Period, Sellers upon reasonable prior notice, the Company shall, and shall cause the Acquired other Alta Companies to, use commercially afford the representatives of Parent (including Parent’s Debt Financing Sources and Equity Financing Sources and their counsel) reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesaccess, assetsduring normal business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Alta Companies and furnish to the representatives of Parent such additional financial and operating data and other information regarding the business of the Alta Companies as Buyer Parent or its representatives may from time to time reasonably request for purposes of consummating the transactions and preparing to operate the business of the Alta Companies following the Closing.
(ii) Notwithstanding anything in this Agreement to the contrary:
(A) in no event shall the Alta Companies or their respective Affiliates be obligated to provide any (1) access or information in violation of any applicable Law or Contract or (2) information the disclosure of which could reasonably be expected to jeopardize any applicable privilege (including the attorney-client privilege) available to any Alta Companies or any of its Representatives may their respective Affiliates relating to such information; provided, that to the extent such access or information is denied pursuant to the foregoing, the Parties shall work together in good faith to develop substitute arrangements that do not result in a violation of Law or Contract, the loss of an applicable privilege or breach of a confidentiality obligation, as applicable;
(B) the auditors and accountants of any of Parent the Alta Companies 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 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 request. All access and investigation acceptable to such auditors or accountants;
(C) if so requested by the Company, Parent shall enter into a customary joint defense agreement or common interest agreement with the Alta Companies or any of their respective Affiliates with respect to any information provided to Parent, or to which Parent gains access, pursuant to this Section 5.2(aSection 6.1(f) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and otherwise; and
(D) conducted at Buyer’s sole cost from and expense, and Sellers shall have after the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing PeriodClosing, the Sellers Company shall, and shall cause each of their Affiliates and each of their and their respective representatives, to hold in confidence and not disclose to any other Person, any information concerning Parent or any Alta Company, except to the Acquired Companies toextent that such information can be shown to have been (I) in the public domain other than as a result of a disclosure or other action (or failure to act) by the Company or any of his Affiliates or any of their respective representatives in violation of this Agreement, use commercially reasonable efforts or (II) lawfully acquired by the Company or his Affiliates or their respective representatives on a non-confidential basis from sources other than those related to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation prior ownership of the Acquired Alta Companies. Notwithstanding anything If the Company or any of his Affiliates or any of their respective representatives are required by Law to disclosure any such information, the Company or its Affiliates shall, to the contrary contained hereinextent permitted by applicable Law, during the Pre-Closing Periodpromptly notify Parent in writing and may disclosure, neither Sellers nor any Acquired Company shall be without liability hereunder, only that portion of such information which is legally required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundbe disclosed; provided, however, that, in such instances, Sellers that Company and its Affiliate shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer use best efforts to provide obtain an appropriate protective order or other reasonable assurance that confidential treatment will be afforded to such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, The Sellers shall, and CRNY shall cause the Acquired Companies to, use commercially reasonable efforts to provide give Buyer and its Representatives with representatives reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice throughout the period prior to SellersClosing to the operations, (B) conducted in such a manner as not properties, books, accounting records, contracts, agreements, leases, commitments, programming, technical and sales records and other records of and pertaining to interfere with the normal business and operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof Stations and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundWJDM; provided, however, thatsuch access shall not unreasonably disrupt the Sellers' or CRNY's normal operation. The Sellers and CRNY shall furnish to Buyer all information concerning CBC's, in the Sellers', the Stations' and WJDM's affairs as Buyer may reasonably request, including, but not limited to, information regarding the status of Sellers' loan agreement with Foothill, and Buyer shall provide CBC with such instances, Sellers shall inform Buyer information regarding Buyer's affairs as CBC reasonably requests. Each party will maintain the confidentiality of the general nature of all the information being withheld and, upon Buyer’s request and materials delivered to it or made available for its inspection by the other hereunder. Nothing shall be deemed to be confidential information that: (a) is known to the party to whom it was disclosed at B▇▇▇▇’s sole cost and expense, reasonably cooperate the time of its disclosure; (b) becomes publicly known or available other than through disclosure by the disclosing party; (c) is received by the party to whom it was disclosed from a third party not actually known by the disclosing party to be bound by a confidentiality agreement with Buyer or obligation to provide such information, in whole the disclosing party; or in part, in a manner that would not result in any of (d) is independently developed by the outcomes described in party to whom it was disclosed as clearly evidenced by its records. Notwithstanding the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained hereinprovisions of this Section 6.11, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), a party may disclose such confidential information (x) Buyer shall notto the extent required (in the opinion of the disclosing parties independent legal counsel) to comply with applicable laws and regulations, (y) to its officers, directors, employees, representatives, financial advisors, attorneys, accountants, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding agents with respect to the business, operations, or prospects transactions contemplated hereby (so long as such parties are informed of the Acquired Companies or this Agreement or confidentiality of such information), and (z) to any Governmental Authority in connection with the transactions contemplated hereby. In the event this Agreement is terminated, and (y) Buyer shall have no right each party will return to perform invasive the other all confidential information disclosed pursuant hereto relating to the transactions contemplated hereunder, whether obtained before or subsurface investigations after the execution of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality this Agreement.
Appears in 1 contract
Access to Information. (a) During From the Pre-date hereof until the Closing PeriodDate or earlier termination of this Agreement, Sellers shallthe Company will provide Purchaser and its officers, counsel, accountants, financial advisors, agents and other representatives with access to the operations of the Company, its principal personnel and representatives, and shall cause such books and records pertaining to the Acquired Companies toCompanies, use commercially reasonable efforts to provide Buyer in each case, as Purchaser may reasonably request during normal business hours and at its Representatives with reasonable access to sole expense; provided that (i) all Purchaser agrees that such access will give due regard to minimizing interference with the operations, activities and employees of the Acquired Companies’ properties, assets, books and recordsCompany, (ii) all senior management such access and disclosure would not violate the terms of the any agreement to which any Acquired Companies and Company is bound (including confidentiality agreements) or any applicable Legal Requirement (including potential violations of Antitrust Law), (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize adversely affect the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets Companies or properties are bound; providedtheir respective Affiliates, however(iv) all arrangements for access shall be made in advance, solely through specified persons at the Company or other authorized representatives, (v) such access does not relate to the disclosure of personnel records of the Company or its Subsidiaries relating to individual performance or evaluation records, medical histories or other information which, in the Company’s good faith opinion (after consultation with legal counsel), would be reasonably likely to subject the Company or its Subsidiary to liability pursuant to applicable Legal Requirements, and (vi) such access does not include any invasive environmental investigations, testing or sampling without the Company’s written consent (which can be withheld in its sole discretion).
(b) Purchaser agrees that, except as otherwise explicitly set forth in such instancesthis Agreement, Sellers all information so received from the Company shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything be deemed received pursuant to the contrary contained hereinConfidentiality Agreement dated July 20, during 2009, as amended as of September 21, 2010, between DSI Renal, Inc. and Purchaser (as amended, the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x“Confidentiality Agreement”) Buyer shall notand that each shall, and shall cause its Affiliates and each of its Representatives not and their representatives to, contact any vendor, supplier or customer of an Acquired Company regarding comply with the business, operations, or prospects provisions of the Acquired Companies or this Confidentiality Agreement or the transactions contemplated herebywith respect to such information, and (y) Buyer shall have no right to perform invasive or subsurface investigations the provisions of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance Confidentiality Agreement are hereby incorporated herein by reference with the Confidentiality same effect as if fully set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Davita Inc)
Access to Information. (a) During Subject to the Pre-Closing PeriodConfidentiality Agreement, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts Company agrees to provide Buyer Parent and its Representatives Representatives, from time to time prior to the Effective Time, such information as Parent shall reasonably request with reasonable respect to Company and its Subsidiaries and their respective businesses, financial conditions and operations and such access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies Company and its Subsidiaries as Buyer or any of its Representatives may Parent shall reasonably request. All , which access and investigation pursuant to this Section 5.2(a) shall be (A) conducted occur during normal business hours upon reasonable advance notice to Sellers, (B) and shall be conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired Companiesbusiness of Company or its Subsidiaries; provided that Company shall not be required to (or to cause any of its Subsidiaries to) provide such information or access to the extent that doing so would violate applicable Law or any contract or obligation of confidentiality owing to a third party or result in the loss of attorney-client privilege, in which case the parties will use their reasonable best efforts to make appropriate substitute disclosure arrangements.
(b) Parent and Company shall comply with, and shall cause their respective Representatives, directors, officers and employees to comply with, all of their respective obligations under the Confidentiality Agreement, which shall survive the termination of this Agreement in accordance with the terms set forth therein.
(c) From and after the date hereof, Company shall provide Parent with an unaudited balance sheet for Company as of the end of each calendar month within ten (10) Business Days of the end of such month (an “Unaudited Monthly Financial Statement”). Any Unaudited Monthly Financial Statement shall be prepared from, and in accordance with, the books and records of Company and its Subsidiaries and be prepared in accordance with current accounting principles.
(d) Not later than fifteen (15) Business Days following the end of the calendar month immediately prior to the anticipated Closing Date, Company shall provide Parent with an unaudited balance sheet for Company as of such month (the “Closing Balance Sheet”) that shall (i) be prepared from, and in accordance with, the books and records of Company and its Subsidiaries, (Cii) coordinated through fairly present in all material respects the Company’s chief executive officer consolidated results of operations, and consolidated financial position of Company and its Subsidiaries for the fiscal period or designee thereof as of the respective dates therein set forth (subject to recurring year-end audit adjustments normal in nature and amount), (iii) comply as to form in all material respects with applicable accounting requirements (including by reflecting (x) all amounts that would properly be accrued under GAAP (including without limitation, payroll expenses for hourly employees, accounts payable at month end for expenses incurred prior to month end, paid time off obligations, and any unfunded liability for self-insurance programs) and (Dy) conducted at Buyeran appropriate allowance for loan and leases losses under GAAP), (iv) be prepared in accordance with GAAP consistently applied during the periods involved and (v) be prepared in a manner consistent with the methodologies, assumptions, policies and practices used in the preparation of the Company Financial Statements for the year ended December 31, 2015. Company shall make available to Parent all relevant books, records and other supporting information reasonably required for Parent’s sole cost review of the unaudited balance sheet upon reasonable advance notice and expenseduring normal business hours. Company and Parent shall cooperate in good-faith to revise such unaudited balance sheet prior to the Closing Date to reflect changes reasonably requested by Parent to conform to the requirements of the preceding clauses (i) through (v); provided, and Sellers however, any such change (but not the underlying factual basis therefor) requested by Parent shall have not in of itself constitute or be deemed to be a breach, violation or failure of the right Company to have one satisfy any representation, warranty or more covenant (other than this Section 6.2(d)) of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers Agreement.
(e) Company shall, and shall cause the Acquired Companies Company’s independent auditor to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer Parent in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance connection with the Confidentiality Agreementpreparation of financial statements of Company and pro forma financial statements that Parent expects to file with the Securities and Exchange Commission.
Appears in 1 contract
Access to Information. (a) During Upon reasonable advance notice, between the Pre-date of this Agreement and the Closing PeriodDate, Sellers the Company shall, and shall cause the Acquired Companies each of its Subsidiaries and each of their respective Representatives to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of give Parent, Acquisition Sub and their potential financing sources and its and their respective Representatives (collectively, "Acquiror's Representatives") reasonable access during normal business hours to the Acquired Companies’ offices, properties, assets, books and recordsrecords (including all Tax Returns and other Tax-related information) of the Company and its Subsidiaries, (ii) furnish to Acquiror's Representatives such financial and operating data and other information (including all senior management of Tax Returns and other Tax-related information) relating to the Acquired Companies Company, its Subsidiaries and their respective operations as such Persons may reasonably request and (iii) any other information relating solely instruct the employees, counsel and financial advisors of the Company and its Subsidiaries to cooperate with Parent and Acquisition Sub in their investigation of the business of the Company and its Subsidiaries; provided, that such access shall only be provided to the business, properties, assets, books and records and personnel extent that such access would not violate Applicable Laws or the terms of any Contract to which the Acquired Companies as Buyer Company or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such Subsidiaries is a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ their respective assets or properties are boundsubject; provided, howeverfurther, thatthat to the extent that the Company or any of its Subsidiaries is restricted in or prohibited from providing any such access to any documents or data pursuant to any such Contract for the benefit of any Third Party, in such instancesupon the request of Parent, Sellers shall inform Buyer each of the general nature Company and any such Subsidiary shall use its reasonable best efforts to obtain any approval, consent or waiver with respect to such Contract that is necessary to provide such access to Acquiror's Representatives. Without limiting the foregoing, Parent, Acquisition Sub and the Acquiror's Representatives shall be allowed to conduct visual inspections, take measurements, make surveys, conduct a Phase I environmental investigation of the information being withheld andCompany, upon Buyer’s request its Subsidiaries and at B▇▇▇▇’s sole cost their properties, but shall not be allowed, absent the prior written approval of the Company, to perform any environmental sampling or analysis of the sort commonly referred to as a Phase II environmental investigation. The Company and expense, its Subsidiaries shall reasonably cooperate with Buyer to provide Parent, Acquisition Sub and the Acquiror's Representatives in connection with any such informationenvironmental investigation, in whole or in partincluding making available personnel, in a manner that would not result in any outside contractors and outside consultants with knowledge of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything environmental matters pertaining to the contrary contained hereinCompany, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, its Subsidiaries and shall cause its Affiliates their properties and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right making available relevant documents related to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companysuch matters.
(b) Buyer will hold any In addition to and without limiting the foregoing, from the date hereof until the Effective Time, the Company shall furnish to Parent, within fifteen (15) Business Days after the end of each month, the standard monthly reporting package set forth in Section 5.3(b) of the Company Disclosure Letter.
(c) Any information obtained relating to the Company or its Subsidiaries made available pursuant to Section 5.2(a) in confidence in accordance with this Section 5.3, shall be subject to the provisions of the Confidentiality Agreement. Neither Parent nor Acquisition Sub shall, and Parent and Acquisition Sub shall cause each of the Acquiror's Representatives not to, use any information acquired pursuant to this Section 5.3 for any purpose unrelated to the consummation of the transactions contemplated hereby. No investigation conducted pursuant to this Section 5.3 shall affect or be deemed to modify or limit any representation or warranty made in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Shopko Stores Inc)
Access to Information. (a) During From the Predate of this Agreement until the 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-Closing Periodclient privilege), Sellers contractual confidentiality obligations and privacy rights of residents, Seller shall, and shall cause the Acquired Companies Company and each of the Company Subsidiaries and each such Person's respective Representatives to, use commercially reasonable efforts to provide Buyer and its : (i) afford the Representatives with of Acquiror reasonable access to (i) all of the Acquired Companies’ offices, properties, assets, books and records, records of the Company and the Company Subsidiaries; (ii) all senior management furnish to the Representatives of Acquiror such additional financial and operating data and other information regarding the Acquired Companies Company's and the Company Subsidiaries' businesses conducted by them as Acquiror may from time to time reasonably request; and (iii) any other information relating solely afford the Representatives of Acquiror and its Affiliates reasonable access to the business, properties, assets, books employees of Seller and records and personnel their Affiliates in respect of the Acquired Companies as Buyer Company and the Company Subsidiaries (and the businesses conducted by the Company and the Company Subsidiaries) and use their reasonable commercial efforts (without any requirement of Seller, the Company and the Company Subsidiaries or any of their respective Representatives to incur any expense to a third party) to make available to the Representatives of Acquiror and its Representatives may reasonably request. All access Affiliates the employees of third party outsourcing companies who provide services to, and are located on the premises of, the Company and the Company Subsidiaries, in each case, whose assistance and expertise is necessary to assist Acquiror in connection with Acquiror's preparation to integrate the Company and the Company Subsidiaries and their businesses and personnel into Acquiror's organization following the Closing; provided, however, that such investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellerson a basis and follow procedures that the parties shall mutually agree, (B) conducted in such a manner as and shall not to unreasonably interfere with any of the normal businesses or operations of the Acquired CompaniesSeller, (C) coordinated through the Company’s chief executive officer , the Company Subsidiaries or designee thereof any of their respective Affiliates; and (D) conducted at Buyer’s sole cost provided, further, that the auditors and expenseaccountants of Seller, the Company, the Company Subsidiaries or any of their respective Affiliates shall not be obligated to make any work papers available to any Person unless and Sellers 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, Indemnitor, the Company or any of the Company Subsidiaries, Acquiror shall have the right to have enter into a customary joint defense agreement with any one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing PeriodSeller, the Sellers Company and the Company Subsidiaries with respect to any information to be provided to Acquiror pursuant to this Section 5.02(a).
(b) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with any reasonable business purpose, including the preparation of Tax Returns and the determination of any matter relating to the rights or obligations of Seller, Indemnitor or any of their 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 the Company or any Company Subsidiary 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), contractual confidentiality obligations and privacy rights of residents, Acquiror shall, and shall cause the Acquired Companies Company and the Company Subsidiaries and their respective Affiliates and Representatives to: (i) afford the Representatives of Seller, use commercially Indemnitor and their Affiliates reasonable efforts access, during normal business hours, to cause its employeesthe offices, counselproperties, books and records of the Company and the Company Subsidiaries and the businesses conducted by them; (ii) furnish to Seller, Indemnitor and their respective Affiliates and Representatives such additional financial advisors, auditors and other authorized information regarding the Company and the Company Subsidiaries and the businesses conducted by them as Seller, Indemnitor or their respective Representatives may from time to cooperate with Buyer time reasonably request; and (iii) make available to the Representatives of Seller, Indemnitor and their Affiliates the employees of Acquiror and its Affiliates in its investigation respect of the Acquired Companies. Notwithstanding anything Company and the Company Subsidiaries and the businesses conducted by them whose assistance, expertise, testimony, notes and recollections or presence is necessary to the contrary contained hereinassist Seller, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access Indemnitor or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets respective Affiliates in connection with Seller's or properties are boundIndemnitor'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 Persons who appear as witnesses in hearings or trials at the request of Seller or Indemnitor, as applicable; provided, however, thatthat such investigation shall be on a basis and follow procedures that the parties shall mutually agree, in and that such instances, Sellers investigation shall inform Buyer not unreasonably interfere with the business or operations of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole Acquiror or in part, in a manner that would not result in any of its Affiliates; provided, further, that the outcomes described in the foregoing clauses (1) auditors and accountants of Acquiror or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent its Affiliates shall not be unreasonably withheldobligated 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 Acquiror, conditioned Seller, Indemnitor or delayed), (x) Buyer the applicable Affiliate thereof shall not, enter into a customary joint defense agreement with Acquiror and shall cause its Affiliates (including the Company and its Representatives not to, contact any vendor, supplier or customer of an Acquired the Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (ySubsidiaries) Buyer shall have no right with respect to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained to be provided to Seller pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreementthis Section 5.02(b).
Appears in 1 contract
Sources: Stock Purchase Agreement (Brookdale Senior Living Inc.)
Access to Information. (a) During the Pre-Closing Period, Sellers The Borrower shall, and shall cause the Acquired Companies other Loan Parties and each of such entity’s officers, directors, employees, agents, representatives, accountants and counsel to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to : (i) all afford the officers, employees and authorized agents, accountants, counsel, representatives and Affiliates of the Acquired Companies’ propertiesAdministrative Agent reasonable access upon reasonable advance notice, assetsduring regular business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assetsother facilities, books and records and personnel of the Acquired Companies as Buyer Loan Parties and to those officers, directors, key employees, accountants and counsel of the Loan Parties who have knowledge of the business or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof Loan Parties and (Dii) conducted at Buyer’s sole cost to furnish to the officers, employees and expenseauthorized agents, accountants, counsel, representatives and Sellers shall have Affiliates of the right Administrative Agent such additional existing financial and operating data and other information regarding the assets, properties and goodwill of the Loan Parties (or legible copies thereof) as the Administrative Agent may from time to have one time reasonably request; provided, however, that the Borrower may elect not to afford access to any such persons or more materials, or furnish any such materials, if the Borrower believes upon a written opinion of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Precounsel that such election is reasonably necessary to preserve attorney-Closing Periodclient privilege.
(b) Within ten days of receipt thereof, the Sellers Borrower shall, and shall cause the Acquired Companies other Loan Parties to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate provide the Administrative Agent with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities copies of any Acquired Companycorrespondence received by such entity from any Governmental Authority relating to any inquiry, claim, suit, action or proceeding resulting from such entity’s alleged violation of any material law, ordinance, regulation, order, writ, permit, license or authorization promulgated by such Governmental Authority.
(bc) Buyer will hold any information obtained pursuant Upon the request of the Administrative Agent, the Loan Parties shall request that their independent certified public accountants make available to Section 5.2(a) the Administrative Agent all working papers produced in confidence connection with such accountant’s audit of the respective entity’s financial statements for each fiscal year through the Maturity Date. The Lenders shall pay all fees or other reasonable expenses of the Borrower’s independent certified public accountants incurred in accordance connection with the Confidentiality Agreementobligations set forth in the preceding sentence.
Appears in 1 contract
Sources: Secured Revolving Credit Agreement (Cowen Group, Inc.)
Access to Information. (a) During Upon reasonable notice and subject to applicable laws relating to the Pre-Closing Periodexchange of information, Sellers shallthe Company and the Company’s Subsidiaries shall afford to the officers, employees, accountants, counsel and shall cause other representatives of UCBH, access, during normal business hours during the Acquired Companies toperiod prior to the Effective Time, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assetsbooks, books and contracts, commitments, records, (ii) all senior management officers, employees, accountants, counsel and other representatives of the Acquired Companies Company and (iii) any other the Company’s Subsidiaries, and, during such period, the Company and the Company’s Subsidiaries shall make available to UCBH all information relating solely to concerning the businessbusinesses, properties, assets, books and records properties and personnel of the Acquired Companies Company and the Company’s Subsidiaries, as Buyer or any of its Representatives UCBH may reasonably request. All access and investigation pursuant UCBH shall use reasonable efforts to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted conduct its due diligence in such a manner as not to interfere with the normal operations that will minimize any disruption of the Acquired Companies, (C) coordinated through business of the Company and the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have Subsidiaries. Neither the right to have one or more of their Representatives present at all times during Company nor any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company Company’s Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure wouldwould violate or prejudice the rights of the customers of the Company or any of the Company’s Subsidiaries, in Sellers’ reasonable judgment, (1) jeopardize the any attorney-client privilege or other immunity contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or protection from disclosure binding agreement entered into prior to the date of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired this Agreement, provided that the Company or the assetsCompany’s Subsidiaries, or operation as the case may be, deliver to UCBH a written log notifying UCBH of the businessexistence of, and the basis for the withholding by the Company and the Company’s Subsidiaries of, such information. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of Sellers the preceding sentence apply.
(b) From and after the date hereof until the Effective Time or the earlier termination of this Agreement, each of the Company and the Company’s Subsidiaries shall, subject to the restrictions set forth in Section 8.3(a), provide copies of any Acquired materials distributed to directors, committee members and shareholders relating to non-confidential portions of board of directors, audit committee and shareholder meetings) and, subject to the prior written consent of any applicable regulatory authority, any regulatory examination exit briefings, and cause one or more of its designated representatives to confer on a regular and frequent basis with representatives of UCBH and to report the general status of the ongoing operations of the Company and the Company’s Subsidiaries. In connection therewith, UCBH shall have the right of full review on any new loan extended by the Bank in a principal amount in excess of $1,000,000. The Company and the Company’s Subsidiaries will promptly notify UCBH of any material change in the normal course of business of the Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets Company’s Subsidiaries or in the operation of their respective properties are boundand, to the extent permitted by law, of the existence or progress in resolution of any governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated), or the institution or the threat of significant litigation involving any of them, and will keep UCBH fully informed of such events, including, without limitation and with the consent of the applicable regulatory authority, the exit briefing at the conclusion of any regulatory examination.
(c) No investigation by UCBH or its representatives shall affect the representations, warranties, covenants or agreements of the Company or any of the Company’s Subsidiaries set forth herein or the control of the business of the Company by its managing member and the business of the Bank by its board of directors and officers.
(d) Notwithstanding anything contained in this Agreement to the contrary, the Company, the Bank and UCBH (and each of their respective employees, representatives, or other agents) may disclose to any and all persons, without limitation, the tax treatment and any facts that may be relevant to the tax structure of the transactions contemplated by this Agreement; provided, however, that, in such instances, Sellers shall inform Buyer that none of the general nature of Company, the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole Bank or in part, in a manner that would not result in UCBH (nor any of their respective employees, representatives or other agents thereof) may disclose any other information that is not relevant to understanding the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent tax treatment and tax structure of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated herebyby this Agreement, and (y) Buyer shall have no right or any other information to perform invasive or subsurface investigations of the properties or facilities extent that such disclosure could result in a violation of any Acquired Companyfederal or state securities law.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ucbh Holdings Inc)
Access to Information. (a) During the Pre-Closing Period, Sellers shall, The Company shall (and shall cause each of its Subsidiaries to) afford to the Acquired Companies Buyer's officers, employees, accountants, counsel and other representatives, reasonable access, upon reasonable advance notice, during normal business hours during the period prior to the Effective 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, use commercially reasonable efforts schedule, registration statement and other document filed or received by it during such period pursuant to provide Buyer the requirements of federal or state securities laws and its Representatives with reasonable access to (ib) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the concerning its business, properties, assets, books and records assets and personnel of as the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) The Buyer will hold any such information obtained pursuant to Section 5.2(a) which is nonpublic in confidence in accordance with the Confidentiality Agreement. No information or knowledge obtained in any investigation pursuant to this Section or otherwise shall affect or be deemed to modify any representation or warranty contained in this Agreement or the conditions to the obligations of the parties to consummate the Merger.
(b) 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 warranties under this Agreement, the Buyer shall (and shall cause each of its Subsidiaries to) afford the Company's officers, employees, accountants, counsel and other representatives reasonable access, upon reasonable advance notice, during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, commitments, personnel and 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 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 confidence in accordance with the Confidentiality Agreement. No information or knowledge obtained in any investigation pursuant to this Section or otherwise shall affect or be deemed to modify any representation or warranty contained in this Agreement or the conditions to the obligations of the parties to consummate the Merger.
(c) Notwithstanding anything to the 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 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 adverse to the interests of such party.
Appears in 1 contract
Access to Information. (a) During From the Predate of this Agreement until the Closing Date, upon reasonable prior 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-Closing Periodclient privilege) and contractual confidentiality obligations, Sellers the Seller shall, and shall cause the Acquired Companies toCompany and each of the Insurance Subsidiaries and each such Person’s respective Representatives, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all afford the Representatives of the Acquired Companies’ Acquiror reasonable access to the offices, properties, assets, books and recordsrecords of the Company and the Insurance Subsidiaries and (ii) furnish to the Representatives of the Acquiror such additional financial and operating data and other information regarding the Company and the Insurance Subsidiaries businesses conducted by them as the Acquiror may from time to time reasonably request; and (iii) make available to the Representatives of the Acquiror and its Affiliates, the employees of the Seller and their Affiliates in respect of the Company and the Insurance Subsidiaries and the businesses conducted by them and use their commercially reasonable efforts (without any requirement of the Seller, the Company and the Insurance Subsidiaries or any of their respective Representatives to incur any expense to a third party) to make available to the Representatives of the Acquiror and its Affiliates the employees of third party outsourcing companies who provide services to, and are located on the premises of, the Company and the Insurance Subsidiaries, in each case, whose assistance and expertise is necessary to assist the Acquiror in connection with the Acquiror’s preparation to integrate the Company and the Insurance Subsidiaries and their businesses and personnel into the Acquiror’s organization following the Closing; provided, however, that the reasonableness of such access and requests shall be determined by taking into account, among other considerations, the competitive positions of the parties and the sensitive nature of the transactions contemplated hereby, and, provided further, 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 the Seller, the Company, the Insurance Subsidiaries or any of their respective Affiliates; and provided further, that the auditors and accountants of the Seller, the Company, the Insurance Subsidiaries 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 the Seller, the Acquiror shall enter into a customary joint defense agreement with any one or more of the Seller, the Company and the Insurance Subsidiaries with respect to any information to be provided to the Acquiror pursuant to this Section 5.02(a). Without limiting the foregoing, any environmental investigation undertaken by the Acquiror shall not include invasive sampling of soil or groundwater on any property occupied by or otherwise affiliated with the Company or any Insurance Subsidiary without the Seller’s prior written consent, which will not be unreasonably withheld or delayed.
(b) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with any reasonable business purpose, including the preparation of Tax Returns and the determination of any matter relating to the rights or obligations of the Seller or any of its respective Affiliates under any of the Transaction Agreements, upon reasonable prior notice, and except as determined in good faith to be appropriate to ensure compliance with any applicable Laws (including any rights of any Employee 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) and contractual confidentiality obligations, the Acquiror shall, and shall cause the Company and the Insurance Subsidiaries and their respective Affiliates and Representatives to (i) afford the Representatives of the Seller and its Affiliates reasonable access, during normal business hours, to the offices, properties, books and records of the Company and the Insurance Subsidiaries and the businesses conducted by them, (ii) all senior management furnish to the Representatives of the Acquired Companies Seller and its Affiliates such additional financial and other information regarding the Company and the Insurance Subsidiaries and the businesses conducted by them as the Seller or its Representatives may from time to time reasonably request and (iii) any other information relating solely make available to the business, properties, assets, books and records and personnel Representatives of the Acquired Companies as Buyer Seller and its Affiliates the employees of the Acquiror and its Affiliates in respect of the Company and the Insurance Subsidiaries and the businesses conducted by them whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller in connection with the Seller’s inquiries for any of its Representatives may reasonably request. All access and investigation pursuant the purposes referred to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersabove, (B) conducted in such a manner as not to interfere with including, at the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at BuyerSeller’s sole cost and expense, and Sellers shall have including reimbursement to the right to have one Acquiror or more of their Representatives present at all times during any visitssuch Affiliates, examinations, discussions or contacts contemplated by this Section 5.2(a). During provided that the Pre-Closing Period, Seller will reimburse the Sellers shall, and shall cause Acquiror for the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation value of the Acquired Companies. Notwithstanding anything to time and any out–of–pocket expenses of such persons who appear as witnesses in hearings or trials at the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation request of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundSeller; provided, however, thatthat the reasonableness of such access and requests shall be determined by taking into account, in such instancesamong other considerations, Sellers shall inform Buyer the competitive positions of the general parties and the sensitive nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and, provided further, that such investigation shall be on a basis and (y) Buyer follow procedures that the parties shall have no right to perform invasive mutually agree, and that such investigation shall not unreasonably interfere with the business or subsurface investigations operations of the properties Acquiror or facilities any of its Affiliates; and provided further, that the auditors and accountants of the Acquiror or its Affiliates shall not be obligated to make any Acquired Companywork 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 the Acquiror, the Seller shall enter into a customary joint defense agreement with the Acquiror and its Affiliates (including the Company and the Insurance Subsidiaries) with respect to any information to be provided to the Seller pursuant to this Section 5.02(b).
(bc) Buyer will hold Notwithstanding anything in this Agreement to the contrary, the Seller shall not be required, prior to the Closing, to disclose, or cause the disclosure of, to the Acquiror or its Affiliates or Representatives (or provide access to any offices, properties, books or records of the Seller or any of its Affiliates that could result in the disclosure to such persons or others of) any information obtained that is required to be treated as confidential pursuant to Section 5.2(aany confidentiality agreement (or instrument with a similar effect) entered into in confidence in accordance connection with any potential business acquisition or combination transaction which has not occurred and which the Confidentiality AgreementCompany and the Insurance Subsidiaries are no longer considering, nor shall the Seller be required to permit or cause others to permit the Acquiror or its Affiliates or Representatives to have access to or to copy or remove from the offices or properties of the Seller or any of its Affiliates any documents or other materials that might reveal any such confidential information.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ge Financial Assurances Holdings Inc)
Access to Information. (a) During From the Pre-date hereof until the Closing PeriodDate, Sellers shallSeller will, and shall will cause the Acquired Companies its Affiliates and employees and will use reasonable best efforts to cause its Representatives (other than its Affiliates and employees) and third party administrators to, use commercially reasonable efforts to provide (i) give Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assets, books and records and personnel employees of the Acquired Companies as Buyer Seller or any of its Affiliates (to the extent relating to the Company or the Business), (ii) give Buyer and its Representatives reasonable access to all personnel and employment information with respect to the employees of Seller or any of its Affiliates primarily engaged in providing services to the Company (including but not limited to compensation, benefits information and performance appraisals), to the extent such information is necessary for Buyer to make evaluations for potential offers of employment to such employees, (iii) furnish to Buyer and its Representatives such financial and operating data and other information relating to the Company and the Business as such Persons may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof request and (Div) conducted at Buyer’s sole cost and expensecooperate with, and Sellers shall have make themselves and any Books and Records in their possession relating to the right to have one or more of their Representatives present at all times during any visitsBusiness, examinationsas applicable, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies reasonably available to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything Business, as applicable; provided that Seller shall have no obligation to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor make payments or incur any Acquired Company shall be required liability in causing its Representatives (other than its Affiliates and employees) and third party administrators to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which take any of the Acquired Companies’ assets or properties are bound; provided, however, that, actions specified above. Any investigation pursuant to this Section 5.02 shall be conducted in such instances, Sellers shall inform Buyer manner so as not to interfere unreasonably with the conduct of the general nature Business. Notwithstanding the foregoing, Buyer shall not have access to personnel records relating to individual performance or evaluation records, employee medical histories or other information which in Seller’s good faith opinion is sensitive or the disclosure of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole which could subject Seller or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1its Affiliates to risk of liability.
(b) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall notSeller shall, and shall cause its Affiliates and its Representatives not employees to, contact any vendoron and after the Closing Date, supplier or customer (i) afford promptly to Buyer and its Affiliates and their respective Representatives reasonable access to the offices, properties, books and records and employees of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated herebySeller and its Affiliates, and (yii) use reasonable best efforts to cause Seller’s and its Affiliate’s Representatives (other than employees) and third party administrators to cooperate with, and make themselves and any books and records in their possession relating to the Company or the Business reasonably available to Buyer and its Affiliates and their respective Representatives, in each case to the extent necessary to permit Buyer to determine any matter relating to its rights and obligations hereunder or under any Ancillary Agreement or for any other reasonable purpose (including for audit, accounting, regulatory, investigation, dispute or litigation purposes and for fulfilling disclosure and reporting obligations); provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller or its Affiliates. Except as otherwise provided in any of the Ancillary Agreements, 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) reasonably incurred by Seller or its Representatives in connection with the foregoing. For avoidance of doubt, the foregoing obligation shall include Seller using its reasonable best efforts to make reasonably available, upon Buyer’s written request, Seller’s and its Affiliates’ Representatives as witnesses. Notwithstanding the foregoing, Seller shall have no right obligation to perform invasive make payments or subsurface investigations incur any liability in causing its Representatives (other than its Affiliates and employees) and third party administrators to take any of the properties or facilities of any Acquired Companyactions specified above.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Hanover Insurance Group, Inc.)
Access to Information. (a) During Within 15 days after the Pre-Closing Perioddate of this Agreement, Sellers THCI shall deliver to the Acquirors a list setting forth, to the knowledge of THCI, all corporations, partnerships, limited liability companies and other entities in which a THCI Subsidiary, a THCI Partnership, a Partnership or a Second Tier Partnership owns a beneficial interest that may be directly or indirectly acquired by the Acquirors pursuant to the terms of this Agreement. From the date hereof until the Applicable Closing, upon reasonable notice, THCI shall, and shall cause the Acquired Companies each THCI Partnership and THCI Subsidiary and each of their respective officers, directors, employees, auditors and agents to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all afford the officers, employees, authorized agents and representatives of the Acquired Companies’ propertiesAcquirors reasonable access, assetsduring normal business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assets, books and records of THCI, the THCI Partnerships and personnel the THCI Subsidiaries relating to the Properties, the Management Company and the Partnership Interests and (ii) furnish to the officers, employees and authorized agents and representatives of the Acquired Companies Acquirors such additional financial and operating data and other information regarding the Properties, the Management Company and the Partnership Interests as Buyer or any of its Representatives the Acquirors may from time to time reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in that (A) such instances, Sellers investigation shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate not unreasonably interfere with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in businesses or operations of THCI or any of its Affiliates (including the foregoing clauses (1THCI Partnerships and the THCI Subsidiaries) or (2). Notwithstanding anything the Properties, the Partnerships or the Second Tier Partnerships, (B) the Acquirors shall not, prior to the contrary contained hereinApplicable Closing, during have any contact whatsoever with respect to the Pre-Closing PeriodProperties or the Partnership Interests or with respect to the transactions contemplated by this Agreement with any partner, without lender, ground lessor, anchor department store or other tenant of THCI or any THCI Partnership, THCI Subsidiary, Partnership or Second Tier Partnership except in consultation with THCI and then only with the express prior written consent approval of Sellers (THCI, which consent approval shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (yC) Buyer all requests by the Acquirors for access or information pursuant to this Section 5.03 shall have no right be submitted or directed exclusively to perform an individual to be designated by THCI. The Acquirors shall not be permitted to conduct any invasive tests on any Property without THCI's prior written consent. The Acquirors agree to indemnify THCI from and against any and all losses, damages or subsurface investigations of the properties or facilities claims suffered by THCI as a result of any Acquired Companyinvestigations or inspections made by the Acquirors.
(b) Buyer will hold any information obtained In order to allow THCI to investigate whether the payments required pursuant to Section 5.2(aSection 2.07(c) have been made correctly, to facilitate the resolution of any third party claims and to prepare documents required to be filed by THCI with Governmental Authorities, after an Applicable Closing, upon reasonable notice, the Acquirors shall (i) afford the officers, employees and authorized agents and representatives of THCI reasonable access, during normal business hours, to the books and records of the Acquirors relating to the assets transferred and the liabilities assumed at such Closing, (ii) furnish to the officers, employees and authorized agents and representatives of THCI such additional financial and other information regarding such assets and liabilities as THCI may from time to time reasonably request and (iii) make available to THCI (at THCI's cost and expense) the employees of the either Acquiror whose assistance, testimony or presence is deemed necessary by THCI, in confidence its reasonable judgment, to assist THCI in accordance with evaluating or defending any such claims, including as witnesses in hearings or trials for such purposes.
(c) The Acquirors agree that they shall preserve and keep all books and records in respect of the Confidentiality AgreementProperties, the Management Company and the Partnership Interests in the Acquirors' possession for a period of at least five years from the last Closing Date. After such five-year period, before either Acquiror shall dispose of any of such books and records, at least 90 calendar days' prior written notice to such effect shall be given by such Acquiror to THCI, and THCI shall be given an opportunity, at its cost and expense, to remove and retain all or any part of such books and records as THCI may select. During such five-year period, duly authorized representatives of THCI shall, upon reasonable notice, have access thereto during normal business hours to examine, inspect and copy such books and records.
Appears in 1 contract
Access to Information. (a) During From and after the Pre-Closing PeriodRedemption Date, Sellers shall, each of Celera and Applera shall cause afford to the Acquired Companies to, use commercially reasonable efforts other and to provide Buyer and its the other’s Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesand duplicating rights, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours and upon reasonable advance notice, to all Information within the possession or control of such party relating to the other party’s business, Assets or Liabilities or relating to or arising in connection with the relationship between the Groups on or prior to the Redemption Date, insofar as such access is reasonably required for a reasonable purpose, subject to the provisions below regarding Privileged Information. Without limiting the foregoing and except as otherwise provided in the Separation Documents, Information may be requested under this Section 9.4 for audit, accounting, claims, litigation and Tax purposes, as well as for purposes of fulfilling disclosure and reporting obligations. In furtherance of the foregoing:
(a) Each party hereto acknowledges that:
(i) Each of Celera and Applera has or may obtain Privileged Information;
(ii) there are a number of Joint Litigation Matters affecting each or both of the Celera Group and the Applied Biosystems Group;
(iii) both Celera and Applera have a common legal interest in the Joint Litigation Matters, in the Privileged Information, and in the preservation of the confidential status of the Privileged Information, in each case, relating to business of the Celera Group or the Applied Biosystems Group or relating to or arising in connection with the relationship between the Groups on or prior to the Redemption Date; and
(iv) both Celera and Applera intend that the Transactions contemplated hereby and by the other Separation Documents and any transfer of Privileged Information in connection therewith shall not operate as a waiver of any applicable privilege.
(b) Each of Celera and Applera agrees not to disclose or otherwise waive any privilege attaching to any Privileged Information relating to the business of the Celera Group or the Applied Biosystems Group, respectively, or relating to or arising in connection with the relationship between the Groups on or prior to the Redemption Date, without providing prompt written notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without obtaining the prior written consent of Sellers (the other, which consent shall not be unreasonably withheld, conditioned delayed or delayed)conditioned; provided, (x) Buyer shall nothowever, that Celera and shall cause its Affiliates and its Representatives not toApplera may make such disclosure or waiver with respect to Privileged Information if such Privileged Information relates solely to the pre-Separation business of the Celera Group, contact any vendor, supplier or customer in the case of an Acquired Company regarding the business, operationsCelera, or prospects the Applied Biosystems Group, in the case of Applera. In furtherance of the Acquired Companies foregoing, prior to or this Agreement on the Redemption Date, Applera and Celera shall execute and deliver, or cause to be executed and delivered, a joint defense agreement, in a form to be mutually agreed upon by the transactions contemplated hereby, and parties thereto (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company“Joint Defense Agreement”).
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Separation Agreement (Applera Corp)
Access to Information. (a) During From and after the Pre-Closing Perioddate of this Agreement, Sellers shallsubject to the requirements of applicable Law, the Company will (i) give Parent and shall Merger Sub and their authorized accountants, investment bankers, counsel and other representatives reasonable access (during regular business hours upon reasonable notice) to such employees, plants, offices, warehouses and other facilities at reasonable times and to such books, contracts, commitments and records (including Tax returns) of the Company and its Subsidiaries as Parent may reasonably request and instruct the Company’s and its Subsidiaries’ independent public accountants to provide access to their work papers and such other information as Parent or Merger Sub may reasonably request, (ii) permit Parent and Merger Sub to make such inspections as they may reasonably require, (iii) cause its officers and those of its Subsidiaries to furnish Parent and Merger Sub with such financial and operating data and other information with respect to the Acquired Companies tobusiness, properties and personnel of the Company and its Subsidiaries as Parent or Merger Sub may from time to time reasonably request, (iv) use its commercially reasonable efforts to provide Buyer and its Representatives obtain when available consistent with reasonable access past practice all unblinded clinical trial data with respect to (i) all the clinical trials listed in Section 5.03 of the Acquired Companies’ propertiesDisclosure Letter, assetsand, books as promptly as reasonably practicable, furnish to Parent or Merger Sub all such data and records, (ii) all senior management any other data or other information resulting from any of the Acquired Companies studies listed in Section 3.17(e) of the Disclosure Letter that implicates patient safety or product efficacy, and (iiiv) any furnish promptly to Parent and Merger Sub a copy of each report, schedule and other information relating solely to document filed or received by the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer Company or any of its Representatives may reasonably request. All access and investigation Subsidiaries during such period pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations requirements of the Acquired Companies, (C) coordinated through federal or state securities Laws. Notwithstanding the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Periodforegoing, the Sellers shallCompany shall not be obligated to provide such access, and shall cause the Acquired Companies toinspections, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and data or other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything information to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required extent that to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, do so (1x) jeopardize the may cause a waiver of an attorney-client privilege or other immunity or protection from disclosure loss of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assetsattorney work product protection, or operation of the business, of Sellers or any Acquired Company or (y) materially breach would violate a confidentiality obligation to any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundPerson; provided, however, that, in such instances, Sellers that that Company shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer use its reasonable best efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, in whole or in partby providing such access, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) inspections, data or (2). Notwithstanding anything other information solely to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operationsoutside counsel, or prospects executing other documents or taking other action reasonably requested by Parent to avoid the loss of the Acquired Companies attorney-client privilege) as is necessary to provide such access, inspections, data or this Agreement or the transactions contemplated hereby, other information to Parent and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyMerger Sub in compliance with applicable law.
(b) Buyer will hold any information Information obtained by Parent or Merger Sub pursuant to Section 5.2(aSection 5.03(a) in confidence in accordance with shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ats Medical Inc)
Access to Information. (a) During Between the Pre-date of this Agreement and the Closing PeriodDate, Sellers shallthe Company will, during ordinary business hours and shall cause the Acquired Companies toupon reasonable notice, use commercially reasonable efforts to provide Buyer (i) give Parent, Parent’s Representatives and its Representatives with financing providers (including prospective providers of financing) and their respective counsel, auditors and other authorized representatives reasonable access to its assets to which Parent is not denied access by Law and to which the Company has the right to grant access without the consent of any other Person (i) all and in the case where consent of the Acquired Companies’ propertiesanother Person is required, assets, books only on such terms and records, conditions as may be imposed by such other Person); (ii) all senior management permit Parent, Parent’s Representatives and its financing providers (including prospective providers of the Acquired Companies financing) and their respective counsel, auditors and other authorized representatives to make such reasonable inspections thereof as they may reasonably request; (iii) any furnish Parent, Parent’s Representatives and its financing providers (including prospective providers of financing) and their respective counsel, auditors and other authorized representatives with such financial and operating data and other information relating solely with respect to the business, properties, assets, books and records and personnel of the Acquired Companies Business as Buyer or any of its Representatives such Persons may from time to time reasonably request. All access ; and investigation pursuant (iv) furnish Parent with a copy of each material report, schedule, or other document relating to this Section 5.2(a) shall be the Business filed by the Company with, or received by the Company from, any Governmental Entity; provided, however, that (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) any investigation permitted by this Section 8.02 will be conducted in such a manner as not to interfere unreasonably with the normal operations operation of the Acquired CompaniesBusiness or any other Person, (B) the Company or any other Cap Rock Entity will not be required to take any action which would constitute a waiver of the attorney client privilege, and (C) coordinated through the Company’s chief executive officer Company need not supply Parent with any information which the Company is under a contractual or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right other legal obligation not to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companiessupply. Notwithstanding anything in this Section 8.02(a) to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed)contrary, (x) Buyer shall notParent will not have access to personnel and medical records if such access could, in the Company’s good faith judgment, subject the Company to risk of liability or otherwise violate the Health Insurance Portability and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer Accountability Act of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby1996, and (y) Buyer shall any investigation of environmental matters by or on behalf of Parent will be limited to visual inspections and site visits commonly included in the scope of “Phase 1” level environmental inspections, and Parent will not have no the right to perform invasive or subsurface investigations conduct any other sampling or testing at, in, on, or underneath any of the properties or facilities of any Acquired CompanyCap Rock Entity.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During On and after the Pre-Closing Perioddate of this Agreement, Sellers shallwill furnish to Buyer such information with respect to the Companies as Buyer shall reasonably request. Without limitation of the foregoing, and Sellers shall cause the Acquired Companies to, use commercially reasonable efforts (i) afford to provide Buyer and its Representatives with officers, employees, accountants, consultants, counsel and other authorized representatives reasonable access access, throughout the period prior to (i) all the earlier of the Acquired Closing Date or the date this Agreement is terminated pursuant to Section 12 hereof, to the Companies’ properties, assets, Business Facilities and books and records, records relating to the Companies; (ii) all senior management of use their best efforts to cause its representatives to furnish to Buyer and its authorized representatives such additional financial and operating data and other information as to the Acquired Companies as Buyer or its duly authorized representatives may from time to time reasonably request; and (iii) any other information relating solely afford Buyer and its representatives reasonable access, throughout the period prior to the businessClosing Date, propertiesto the Companies’ present and potential customers, assets, books and records and personnel of the Acquired Companies such that Buyer may conduct such due diligence investigation relating to customer relations as Buyer deems reasonably necessary or appropriate. Sellers hereby release, discharge and hold harmless Buyer, any affiliate or subsidiary of Buyer, and any officer, director, shareholder, employee, agent, attorney, joint venturer, partner, servant, consultant, representative, trustee, successor or assign of Buyer or of any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersaffiliates or subsidiaries, (B) conducted in such a manner as not to interfere with the normal operations from all liability or claims by reason of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure wouldcontact referred to in this Section 5.2, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or except for any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or misuse by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer covenants and agrees that all due diligence materials will hold any information obtained be used solely for the purposes of assessing the Companies in connection with Buyer’s possible acquisition thereof pursuant to Section 5.2(a) this Agreement, and that any other use shall be strictly prohibited. The parties acknowledge that a certain Confidentiality and Non-disclosure Agreement dated August 11, 2005 was executed by WCA Waste Corporation on behalf of Buyer, the Companies and the Sellers, and remains in confidence in accordance with the Confidentiality Agreementfull force and effect.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Wca Waste Corp)
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the Closing, Sellers upon reasonable notice, the Seller shall, and the Seller Members shall cause the Acquired Companies Seller to, use commercially reasonable efforts to provide Buyer cause its officers, directors and its Representatives with reasonable access employees to (i) all of afford the Acquired Companies’ propertiesPurchaser and Parent reasonable access, assetsduring normal business hours, to the books and records, (ii) all senior management of the Acquired Companies financial and (iii) any operating data and other information relating solely to regarding the businessassets, properties, assets, books liabilities and records and personnel goodwill of the Acquired Companies Business as Buyer or any of its Representatives may the Purchaser may, from time to time, reasonably request. All access request and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersthose officers, (B) conducted in such a manner as not to interfere with the normal operations directors, employees, agents, attorneys and accountants of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall Seller who have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything material knowledge relating to the contrary contained hereinBusiness, during unless the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide furnishing of such information or access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, would (1) jeopardize violate the provisions of any applicable law or any applicable confidentiality agreement or covenant or (2) cause the loss of the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (legal privilege with respect to thereto. Notwithstanding the obligations placed therein on foregoing, the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, thatSeller Members may, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s their sole cost and expense, reasonably cooperate with Buyer to provide such information, discretion restrict or limit in whole or in part, part or condition in a manner that would not result in any respect the furnishing or access to information or Persons to the extent relating to any of the outcomes described in (i) Excluded Assets or Excluded Liabilities and (ii) any unredacted customer lists, unredacted copies of the foregoing clauses (1) Seller’s agreements with its customers, passwords and Source Code, any unredacted reports or (2)documents whatever the source that contain customer identification, domain name or revenue share or other statistical information included among the Purchased Assets and the unredacted hosting and support agreement. Notwithstanding anything to The Purchaser and the contrary contained herein, during Parent acknowledge and agree that it is the Pre-Closing Period, without current intent and understanding of the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), parties hereto that (x) Buyer shall not, the Purchaser and shall cause its Affiliates and its Representatives the Parent will not to, contact any vendor, supplier or customer of an Acquired Company regarding be provided access to the business, operations, or prospects items described in clause (i) of the Acquired Companies or this Agreement or the transactions contemplated herebyimmediately preceding sentence, and (y) Buyer shall have no right to perform invasive or subsurface investigations with the exception of the properties or facilities Source Code, the Purchaser and Parent will not be provided access to the items described in clause (ii) of any Acquired Companythe immediately preceding sentence until immediately following the Closing.
(b) Buyer will hold In order to facilitate the resolution of any information obtained pursuant claims made by or against or incurred by the Purchaser or Seller Parties after the Closing or for any other reasonable purpose, for a period of seven years following the Closing, all parties shall (i) retain all books and that relate to Section 5.2(athe Business and its operations for periods prior to the Closing and that shall not otherwise have been delivered to the other parties and (ii) upon reasonable notice, afford the officers, employees, agents and representatives of the Purchaser or the Seller Parties, as applicable, reasonable access, during normal business hours, to such books and records.
(c) On or prior to September 7, 2006, the Seller or its agents shall afford access to a complete copy of the software code in confidence source code form (and any related documentation) used in the conduct of the Business as of January 1, 2006 (the “Source Code”) to an employee or agent of the Purchaser and Parent with subject matter expertise who has (i) been designated in writing and (ii) executed and delivered to the Seller a confidentiality and non-use agreement in a form mutually acceptable to the Purchaser and the Seller (such employee or agent, the “Source Code Reviewer”). The Source Code Reviewer shall have the lesser of (i) three consecutive (3) Business Days or (ii) four consecutive calendar days (commencing on the Business Day immediately after the date on which the Source Code Reviewer is provided access to a complete copy of the Source Code) to review, analyze, examine and test the Source Code; provided, that any such review, analysis, examination and testing shall be conducted by the Source Code Reviewer in the presence of representative(s) of the Seller at locations and times to be reasonably determined the Seller provided, further, that the Source Code shall at all times remain in the sole possession of Seller or its agents. If the Purchaser and Parent reasonably determines based on the description of the Source Code Reviewer that the Source Code has not met one or both of the standards set forth in the first sentence of Section 8.02(e), then the Purchaser, Parent or both shall deliver to the Seller a written notice thereof in accordance with Section 11.02, which written notice shall include a detailed explanation prepared in good faith by the Confidentiality AgreementSource Code Reviewer which sets forth the basis upon which he reaches the conclusion that the standards specified in the first sentence of Section 8.02(e) are not met and describes the actions necessary to comply with such standards (a “Source Code Deficiency Notice”).
Appears in 1 contract
Access to Information. (a) During From the Pre-Execution Date until the Closing Period, Sellers shallDate, and shall cause subject to the Acquired Companies toClean Team Agreement, use commercially reasonable efforts to provide Buyer the Company will (a) give the Buyer, its counsel, financial advisors, auditors, Financing Sources and its Representatives with other authorized representatives reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assetsofficers, employees, books and records and personnel of the Acquired Companies Company and the Seller Parties, in each case during normal business hours and (b) furnish to the Buyer, its counsel, financial advisors, auditors, Financing Sources and other authorized representatives such financial and operating data and other information relating to the Company as Buyer or any of its Representatives contemplated by the Commitment Letter and otherwise as such Persons may reasonably request. All access and investigation pursuant to this Section 5.2(a) The Buyer shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause any investigation pursuant to this Section 6.4 to be conducted in such manner as not to materially interfere with the conduct of the business of the Seller Parties or the Company and its employeesSubsidiaries. Notwithstanding the foregoing, the Buyer shall not be entitled to perform any intrusive or invasive subsurface investigation or other sampling or testing of, on or under any of the properties, equipment or improvements of the Company or any of its Subsidiaries without the prior written consent of the Principal Seller, which consent may be withheld by the Principal Seller in its sole and absolute discretion. To the fullest extent permitted by Law, the Seller Parties, the Company and its Subsidiaries and their respective counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything representatives and Affiliates shall (i) not be responsible or liable to the contrary contained hereinBuyer for personal injuries sustained by the Buyer’s counsel, during financial advisors, auditors, Financing Sources and other representatives in connection with the Pre-Closing Period, neither Sellers nor any Acquired Company access provided pursuant to this Section 6.4(a) and (ii) shall be required to provide access or disclose information where indemnified and held harmless by the Buyer for any losses suffered by any such access or disclosure would, Persons in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict connection with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companypersonal injuries.
(b) From the Execution Date until the Closing Date, the Buyer will hold (a) give the Principal Seller, its counsel, financial advisors, auditors, and other authorized representatives reasonable access to the offices, properties, officers, employees, books and records of the Buyer, in each case during normal business hours and (b) furnish to the Principal Seller, its counsel, financial advisors, auditors, and other authorized representatives such financial and operating data and other information relating to the Buyer as such Persons may reasonably request. The Principal Seller shall use commercially reasonable efforts to cause any information obtained investigation pursuant to Section 5.2(athis Section 6.4(b) to be conducted in confidence in accordance such manner as not to materially interfere with the Confidentiality Agreementconduct of the business of the Buyer and its Subsidiaries.
Appears in 1 contract
Access to Information. (a) During Subject to the Pre-Closing PeriodConfidentiality Agreement dated as of March 17, Sellers shall1999, between SCHWAB and UST (as it may be amended from time to time, the "Confidentiality Agreement"), UST and the UST Subsidiaries shall afford SCHWAB, and shall cause the Acquired Companies to▇▇▇▇▇▇'▇ officers, use commercially reasonable efforts to provide Buyer employees, accountants, counsel, financial advisors and its Representatives with other representatives, reasonable access during normal business hours during the period prior to the Effective Time or the termination of this Agreement to all its properties, books, contracts, commitments, personnel and records and, during such period, UST shall furnish promptly to SCHWAB (ia) a copy of each report, schedule, registration statement and other document filed by UST or its Subsidiaries during such period pursuant to the requirements of United States Federal or state banking or securities laws and (b) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the concerning UST's or its Subsidiaries' business, properties, assets, books and records properties and personnel of the Acquired Companies as Buyer or any of its Representatives SCHWAB may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to SellersExcept as required by law, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expenseSCHWAB will hold, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to will cause its officers, employees, accountants, counsel, financial advisors, auditors advisors and other authorized Representatives representatives and affiliates to cooperate hold, any nonpublic information received from UST, directly or indirectly, in accordance with Buyer in its investigation of the Acquired Companies. Notwithstanding anything Confidentiality Agreement.
(b) Subject to the contrary contained hereinConfidentiality Agreement, during SCHWAB agrees to provide to UST, from time to time prior to the Pre-Closing PeriodEffective Time or termination of this Agreement, neither Sellers such information as UST shall reasonably request with respect to SCHWAB and its business, financial condition and operations. Except as provided by law, UST will hold, and will cause its officers, employees, accountants, counsel, financial advisors and other representatives to hold, any nonpublic information received from SCHWAB, directly or indirectly, in accordance with the Confidentiality Agreement.
(c) Neither SCHWAB nor UST nor any Acquired Company of their respective Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure wouldwould violate or prejudice the rights of SCHWAB or UST, in Sellers’ reasonable judgmentas the case may be, (1) customers, jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the businessinstitution in possession or control of such information or contravene any law, of Sellers rule, regulation, order, judgment, decree, fiduciary duty or any Acquired Company or (y) materially breach any Contract (with respect binding agreement entered into prior to the obligations placed therein on date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the applicable Acquired Company) to which an Acquired Company is party or by which any restrictions of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companypreceding sentence apply.
(bd) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with No investigation by either of the Confidentiality Agreementparties or their respective representatives shall affect the representations and warranties of the other set forth herein.
Appears in 1 contract
Access to Information. (a) During From the Pre-Closing Perioddate of this Agreement until the Closing, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Company will (i) give the Buyer and its Representatives with Affiliates and their respective Representatives, reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted on reasonable notice during normal business hours upon reasonable advance notice to Sellersall properties, facilities and offices, copies of books, records, Tax Returns, commitments and Contracts (Bincluding customer and supplier Contracts) conducted in and such a manner financial and operating data and other information with respect to the Company and each Company Subsidiary as not to interfere with the normal operations of the Acquired Companiessuch persons may reasonably request, (C) coordinated through the Company’s chief executive officer or designee thereof and (Dii) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause instruct its employees, counsel, accountants, financial advisors, auditors advisors and other authorized Representatives representatives to cooperate reasonably with the Buyer in its investigation of the Acquired CompaniesCompany and each Company Subsidiary. Notwithstanding anything to the contrary contained hereinforegoing, during the Pre-Closing Period, neither Sellers nor any Acquired Company and the Company Subsidiaries shall not be required to provide access or disclose to any information where such access or disclosure would, in Sellers’ reasonable judgment(A) that is personally identifiable information of a third party which is prohibited from being disclosed pursuant to the terms of a written confidentiality agreement with a third party, (1B) jeopardize the disclosure of which would violate any Law, (C) the disclosure of which would constitute a waiver of attorney-client client, attorney work product or other legal privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(xD) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect which primarily relates to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any negotiations of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby; provided, and however, that the Company will reasonably cooperate with the Buyer to provide as much information as reasonably permissible under the immediately foregoing clauses (yA) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companythrough (C).
(b) From the date of this Agreement until the Closing, the Buyer and the Buyer Parent will hold (i) give the Company and its Affiliates, counsel, financial advisors, auditors, employees, agents and other representatives, and its financing sources and their representatives, reasonable access on reasonable notice during normal business hours to all properties, facilities and offices, copies of books, records, Tax Returns, commitments and Contracts (including customer and supplier Contracts) and such financial and operating data and other information with respect to the Buyer, the Buyer Parent and each of the Buyer Subsidiaries as such persons may reasonably request, and (ii) instruct its employees, counsel, accountants, financial advisors and other representatives to cooperate reasonably with the Company in its investigation of the Buyer Parent or the Buyer Subsidiaries. Notwithstanding the foregoing, the Buyer Parent and the Buyer Subsidiaries shall not be required to provide access to any information obtained (A) that is personally identifiable information of a third party which is prohibited from being disclosed pursuant to Section 5.2(athe terms of a written confidentiality agreement with a third party, (B) in confidence in accordance the disclosure of which would violate any Law, (C) the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege or (D) which primarily relates to the negotiations of this Agreement or the transactions contemplated hereby; provided, however, that the Buyer and the Buyer Parent will reasonably cooperate with the Confidentiality AgreementCompany to provide as much information as reasonably permissible under the immediately foregoing clauses (A) through (C).
Appears in 1 contract
Access to Information. (a) During From the Predate of this Agreement until the Closing (or until earlier termination of this Agreement), upon reasonable prior 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-Closing Periodclient privilege) and contractual confidentiality obligations, the Asset Sellers shall, and the Share Sellers shall cause the Acquired Companies Company and the Transferred Subsidiary to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all afford the Representatives of the Acquired Companies’ Acquiror reasonable access, during normal business hours, to the properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assetsemployees, books and records and personnel of the Acquired Companies as Buyer or any of its Business and (ii) furnish to the Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof Acquiror such additional financial and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors operating data and other authorized Representatives information regarding the Business as the Acquiror may from time to cooperate with Buyer in its investigation time reasonably request for purposes of preparing to operate the Acquired Companies. Notwithstanding anything to Business following the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundClosing; provided, however, that, in that such instances, Sellers investigation shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate not unreasonably interfere with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described businesses, personnel or operations of the Sellers or any of their Affiliates; and provided, further, that the auditors and accountants of the Sellers 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 such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If reasonably requested by the foregoing clauses (1) Sellers, the Acquiror shall enter into a customary and mutually acceptable joint defense agreement with the Sellers or (2any of their Affiliates with respect to any information to be provided to the Acquiror pursuant to this Section 5.02(a). Notwithstanding anything to the contrary contained herein, during prior to the Pre-Closing PeriodClosing, without the prior written consent of Sellers (the Sellers, which consent shall may not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and neither the Acquiror nor any of its Representatives not shall contact any suppliers to, contact any vendoror customers of, supplier or customer of an Acquired Company regarding the businessSellers, operations, or prospects of the Acquired Companies or this Agreement their Affiliates or the transactions contemplated hereby, Business other than in the ordinary course of business and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyon a basis consistent with past practice.
(b) Buyer will hold From the date of this Agreement until the Closing, the Sellers shall prepare an unaudited statement of assets and liabilities and an unaudited statement of revenues and expenses of the Business as of the last calendar day of each month (each, a “Monthly Management Statement”). The Sellers shall deliver a true and complete copy of each such Monthly Management Statement to the Acquiror as soon as practicable following the preparation of each such Monthly Management Statement, but in any event no later than fifteen (15) Business Days following the last calendar day of the month in respect of which such Monthly Management Statement was prepared. In the event that the Closing has not occurred on or prior to December 31, 2013, the Sellers shall prepare an unaudited statement of assets and liabilities and an unaudited statement of revenues and expenses of the Business as of December 31, 2013 (the “2013 Financial Statements”). The Sellers shall deliver a true and complete copy of the 2013 Financial Statements to the Acquiror as soon as practicable following December 31, 2013, but in any event no later than February 1, 2014.
(c) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with any reasonable business purpose Related to the Business, including the preparation of Tax Returns, claims relating to Assumed Liabilities or Excluded Liabilities, financial statements, and U.S. Securities and Exchange Commission reporting obligations, or the determination of any matter relating to the rights or obligations of any party hereto or any of their respective 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), (iii) comply with any contractual confidentiality obligations, or (iv) restrict or prohibit access to Confidential Information (in the good faith judgment of the party claiming such exception), the parties hereto shall, and shall cause each of their respective Affiliates and Representatives to (A) afford the Representatives of the other parties hereto and their respective Affiliates reasonable access, during normal business hours, to their properties, electronically stored data and information, and books and records in respect of the Business, the Business Assets (and related Liabilities), the Excluded Assets (and related Liabilities) and the Shares, and permit copies of such materials to be made solely for use in connection with the reasonable business purposes described in this paragraph, (B) furnish to the Representatives of the other parties hereto and their respective Affiliates such additional financial and other information obtained pursuant regarding the Business, the Business Assets (and related Liabilities), the Excluded Assets (and related Liabilities) and the Shares as the other parties hereto and their respective Affiliates may from time to Section 5.2(atime reasonably request and (C) make available to the other parties hereto and their Affiliates those employees whose assistance, expertise, testimony, notes and recollections or presence may be necessary to assist the other parties hereto in confidence connection with their inquiries for any reasonable business purpose referred to above; provided, however, that such investigation shall not unreasonably interfere with the business or operations of any party hereto or any of its Affiliates; and provided, further, that the auditors and accountants of the parties hereto 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. If so requested by a party hereto providing any information or access, the Confidentiality Agreementparty hereto or its Affiliate seeking information or access shall enter into a customary and mutually acceptable joint defense agreement with respect to any information to be provided to the party hereto seeking information or access pursuant to this Section 5.02(c). Notwithstanding the foregoing, and for avoidance of doubt, this Section 5.02(c) shall not permit any party hereto access to any properties, electronically stored data, information, books and records, financial or any other information which is not Related to the Business, unless such access is reasonably required in connection with a reasonable business purpose Related to the Business.
(d) Notwithstanding anything in this Agreement to the contrary, the Sellers and their respective Affiliates shall not be required, prior to the Closing, and the Acquiror and its Affiliates shall not be required, following the Closing, to disclose, or cause or seek to cause the disclosure, to any Person (or to provide access to any properties, books or records that would reasonably be expected to result in the disclosure to any Person of) any trade secrets, proprietary know how, processes or patent, trademark, trade name, service ▇▇▇▇ or copyright applications or product development, or pricing and marketing plans, in each case that is confidential information, nor shall the Sellers and their respective Affiliates, prior to the Closing, or the Acquiror and its Affiliates, following the Closing, be required to permit or cause or seek to cause others to permit any Person to have access to or to copy or remove from the properties of the Sellers or the Acquiror or any of their respective Affiliates, as the case may be, any documents, drawings or other materials that might reveal any such confidential information.
(e) Notwithstanding anything to the contrary in Section 5.02(a), the Acquiror shall not conduct, prior to the Closing, without the prior written consent of the Sellers, which consent the Sellers may grant or withhold in their sole discretion, any sampling, testing or other intrusive indoor or outdoor investigation at or in connection with the Real Property or any other property associated or affiliated in an way with the Sellers, the Business Assets, the Company, the Transferred Subsidiary or the Business.
Appears in 1 contract
Access to Information. (a) During From the Pre-Closing Perioddate of this Agreement until the Closing, Sellers shallDuPont will, and shall will cause the Acquired Companies its Subsidiaries to, use commercially reasonable efforts to provide give Buyer and its Representatives with reasonable access to (i) all the Transferred DPC Books and Records and to such personnel, Employee Benefit Plan trustees, offices and other facilities and properties of the Acquired Companies’ properties, assets, books Transferred DPC Companies and records, (ii) all senior management their Subsidiaries and to furnish such other information in respect of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel operation of the Acquired Companies DPC Business and the ownership and leasehold interest in the Real Property as Buyer or any of its Representatives may reasonably request. All ; provided, that all requests for access and investigation pursuant to this Section 5.2(a) Section 5.2 shall be (A) made in writing and shall be directed to and coordinated with the Manager, Corporate Mergers & Acquisitions of DuPont, or such person or persons as he/she shall designate; provided, further, that any such access shall be conducted during normal business hours at a reasonable time, upon reasonable advance notice to SellersDuPont, (B) conducted and in such a manner as not to interfere unreasonably with the normal operations operation of any business conducted by any Transferred DPC Company or its Subsidiaries; provided, further, that any such access or information request shall not involve any Phase 2 environmental assessment or other invasive sampling, investigation or work of any kind. All such information and access shall be subject to the terms and conditions of the Acquired CompaniesConfidentiality Agreement. The Confidentiality Agreement is hereby amended, as of the date of this Agreement, to include in the definition of “Permitted Financing Sources” and “Representatives” contained therein all existing or prospective equity investors, co-investors and direct and indirect equity and debt financing sources of Buyer and its stockholders and its and their respective Affiliates and their respective agents, advisors and Representatives; provided that DuPont’s prior written approval shall be required with respect to any such equity investor, co-investor or equity financing source except in the event (Ci) coordinated through such equity investor, co-investor or equity financing source is a limited partner of any investment fund affiliated with Carlyle Investment Management, L.L.C. or an Affiliate of any such limited partner or another institutional investor (including pension funds, sovereign wealth funds, university endowment funds, mutual funds, funds of funds, banks and other financial institutions), but excluding in the Company’s chief executive officer case of each of the foregoing private equity funds or designee thereof hedge funds (other than funds of funds) and (Dii) conducted at Buyer’s sole cost and expensethe participation of such equity investor, and Sellers co-investor or equity financing source would not reasonably be expected to result in a delay in or prevent the receipt of any Required Antitrust Approval. The execution of this Agreement shall have constitute written consent by DuPont pursuant to the right Confidentiality Agreement to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated actions by Buyer expressly permitted by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation Agreement that would otherwise be restricted under Section 3.2 of the Acquired CompaniesConfidentiality Agreement, which consent shall automatically terminate and no longer be effective if this Agreement is terminated pursuant to Section 8.1. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Periodin this Agreement, neither Sellers DuPont nor any Acquired Company its Subsidiaries (including the Transferred DPC Companies) shall be required to provide access disclose to Buyer or disclose its Representatives any information where such access (i) related to the Sale Process or disclosure wouldDuPont’s or its Representatives’ evaluation thereof including projections, financial or other information related thereto other than projections, financial or other information prepared in Sellers’ reasonable judgmentthe ordinary course of the DPC Business without being primarily prepared for the Sale Process or to the extent prepared in response to requests by Buyer after the date hereof, (1ii) jeopardize if doing so presents a reasonable risk of violating any Contract or Law to which DuPont or any of its Subsidiaries is a party or to which it is subject or which it believes in good faith could result in a loss of the attorney-client privilege or other immunity or protection from ability to successfully assert a claim of Privilege (provided that the parties hereto shall cooperate in seeking to find a way to allow disclosure of Sellers such information in a manner which would not (in the good faith belief of DuPont (after consultation with counsel, which may be in-house counsel)) reasonably be likely to result in the violation of any such Contract or any Acquired Company or (2)(x) conflict with any Law or Order applicable reasonably be likely to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (cause such Privilege to be undermined with respect to the obligations placed therein such information), (iii) if DuPont or any of its Subsidiaries, on the applicable Acquired Companyone hand, and Buyer or any of its Subsidiaries, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto or (iv) if DuPont or any of its Subsidiaries reasonably determines in good faith that such information is competitively sensitive to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2)Excluded Businesses. Notwithstanding anything to the contrary contained hereinforegoing, during the Pre-Closing Period, without the prior written consent of Sellers (which consent DuPont and its Subsidiaries shall not be unreasonably withheldrequired to provide any such information to the extent it relates solely to the Excluded Businesses, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement Excluded Assets or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyRetained Liabilities.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the Closing, Sellers shallupon reasonable notice, the Purchaser shall cause, and shall cause the Acquired Companies toPurchaser Vessel Owning Subsidiaries, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all the Company shall and shall cause the Subsidiaries and each of the Acquired CompaniesPurchaser’s, the Purchaser Vessel Owning Subsidiaries’, the Company’s and the Subsidiaries’ propertiesrespective officers, assetsdirectors, books employees, agents, representatives, accountants and recordscounsel to: (a) afford the officers, (ii) all senior management employees and authorized agents, accountants, counsel, financing sources and representatives of either the Acquired Companies Purchaser or the Company and (iii) any other information relating solely the Subsidiaries, as applicable, reasonable access, during normal business hours, to the businessoffices, properties, assetsvessels, plants, other facilities, books and records of either the Purchaser, or any Purchaser Vessel Owning Subsidiary, or the Company and personnel each of the Acquired Companies Subsidiaries, as Buyer applicable, and to those officers, directors, employees, agents, accountants and counsel of either the Purchaser and each Purchaser Vessel Owning Subsidiary or Company and of each Subsidiary, as applicable, who have any Knowledge relating to either the Purchaser, or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to SellersPurchaser Vessel Owning Subsidiary, (B) conducted in such a manner or the Company or any Subsidiary, as not to interfere with the normal operations of the Acquired Companiesapplicable, (C) coordinated through the Company’s chief executive officer or designee thereof and (Db) conducted at Buyer’s sole cost furnish to the officers, employees and expenseauthorized agents, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employeesaccountants, counsel, financing sources and representatives of the Purchaser and each Purchaser Vessel Owning Subsidiary, the Company and each of the Subsidiaries, as applicable, such additional financial advisors, auditors and operating data and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or regarding the assets, or operation properties and goodwill of the businessPurchaser and each Purchaser Vessel Owning Subsidiary or the Company and the Subsidiaries, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed)as applicable, (xor legible copies thereof) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding as the business, operations, or prospects of the Acquired Companies or this Agreement Purchaser or the transactions contemplated herebyCompany and the Subsidiaries, and (y) Buyer shall have no right as applicable, may from time to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companytime reasonably request.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Interim Period, Sellers shallthe Seller will, during ordinary business hours and shall cause the Acquired Companies to, use commercially upon reasonable efforts notice and subject to provide Buyer compliance with all applicable NRC rules and its Representatives with reasonable access to regulations:
(i) permit the Buyer and Buyer's Representatives to have reasonable access, in a manner so as not to unreasonably interfere with the normal operations of the Seller, to all books, records, plants, offices and other facilities and properties constituting the Acquired Assets in order to plan for and facilitate an orderly transition of ownership of the Acquired Companies’ properties, assets, books and records, Assets; (ii) all senior management of furnish the Buyer with operating data and other information with respect to the Acquired Companies Assets as the Buyer may from time to time reasonably request; and (iii) furnish the Buyer a copy of each material report, schedule or other document filed or received by the Seller with respect to the Acquired Assets with the NRC, FERC, VTDPS, VTPSB or any other information relating solely to the business, properties, assets, books and records and personnel of Governmental Authority having jurisdiction over the Acquired Companies as Buyer or any of its Representatives may reasonably requestAssets. All access and investigation inspections by the Buyer (whether pursuant to this Section 5.2(aSection 6.2 or otherwise) shall be are subject to the following provisions:
(Aa) conducted during normal business Physical Access (Escorted and Unescorted).
(i) The Buyer shall, with respect to each Person designated by the Buyer to have escorted access to the Facility, provide the following information for each such Person to the Plant Manager for the Facility (or his designee) no later than twenty-four (24) hours upon prior to the proposed time of access by such Person: name, date of birth, social security number, and the name of each nuclear power plant at which such Person has a current badge for unescorted access. The Seller reserves the right where necessary to limit the number of Persons to whom escorted access is provided at any one time on account of safety and/or reasonable advance logistical considerations.
(ii) Subject to the immediately succeeding sentence, the Buyer shall, with respect to each Person designated by the Buyer to have unescorted access to the Facility, provide reasonable notice to Sellersthe Plant Manager for the Facility (or his designee), (B) conducted in such a manner so as not to interfere with the normal business operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expenseFacility, and Sellers such Person shall have comply with all existing requirements of the right to have one or more of their Representatives present at all times during any visitsFacility and NRC for unescorted access, examinationsincluding, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies but not limited to, use commercially reasonable efforts to cause its employeesbackground investigation, counseltraining requirements, financial advisorsfitness-for-duty requirements, auditors a psychological assessment and other authorized Representatives to cooperate with Buyer in its investigation of behavioral observation.
(iii) In the Acquired Companies. Notwithstanding anything to event that the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right a fitness-for-duty program meeting the requirements of 10 C.F.R. Part 26, the Buyer may request that any Person subject to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance such program be excused from compliance with the Confidentiality Agreement.fitness-for-duty program of VYNPS, in which event the provisions of 10 C.F.R.
Appears in 1 contract
Access to Information. (a) During Subject to the Pre-Closing Periodrestrictions of any applicable Law or contractual undertaking, Sellers shallbetween the date of this Agreement and the Closing, in connection with the performance of this Agreement, the closing of the transactions contemplated hereby and for other bona fide transition planning purposes, Parent shall and shall cause the Acquired Companies to, use commercially reasonable efforts its Subsidiaries to provide (i) give Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesbooks, records, work papers, senior management level employees, offices, assets, books financial information and recordsother facilities and properties of the Business and the Companies, (ii) all senior management of the Acquired Companies permit Buyer to make such inspections thereof as Buyer may reasonably request and (iii) any cause the officers of the Business to furnish Buyer with such financial and operations data and other information relating solely with respect to the business, properties, assets, books and records and personnel of the Acquired Companies Business as Buyer or any of its Representatives may reasonably request. All access and ; provided, however, that any such investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersunder the supervision of the applicable personnel of Parent or its Affiliates, (B) conducted in such a manner as not to interfere maintain the confidentiality of this Agreement and the transactions contemplated by this Agreement in accordance with the normal Confidentiality Agreement and not interfere unreasonably with the operations of the Acquired CompaniesBusiness in any material respect. Notwithstanding the foregoing of this Section 6.3(a), (C) coordinated through the Company’s chief executive officer or designee thereof Buyer and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, environmental consultants, investment bankers, financial advisorssources, auditors lenders and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything representatives will not, prior to the contrary contained hereinClosing, during the Pre-Closing Periodconduct any environmental assessments, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure wouldstudies, in Sellers’ reasonable judgmentinvestigations, (1) jeopardize the attorney-client privilege monitoring, or other immunity or protection from disclosure of Sellers or inquiries pertaining to environmental laws and relating to the Leased Real Property, including any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assetsPhase I environmental site assessment, Phase II environmental site assessment, or operation invasive sampling of the businesssoil, of Sellers or groundwater, air, any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operationsother environmental media, or prospects of the Acquired Companies building materials or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyequipment.
(b) All information furnished or provided by Parent, any Company or any of their respective Affiliates or representatives to Buyer will hold any information obtained or its representatives (whether furnished before or after the date of this Agreement) pursuant to Section 5.2(aSection 6.3(a) shall be held subject to the Confidentiality Agreement except as expressly provided in confidence in accordance with Section 6.24; provided, that, upon the Closing, the obligations of Buyer pursuant to the terms of the Confidentiality Agreement, solely to the extent related to the Business, shall terminate.
Appears in 1 contract
Sources: Purchase Agreement (NCR Voyix Corp)
Access to Information. (a) During Between the Pre-Effective Date and the Closing PeriodDate, Sellers shallthe Seller Parties will permit, and shall Seller Parties will cause the Acquired Companies toRSP and RSP-TW to permit, use commercially reasonable efforts Representatives of either Purchaser (including legal counsel and accountants) to provide Buyer and its Representatives with have reasonable access to (i) at all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable times after receiving reasonable advance notice to Sellersfrom such Purchaser, (B) conducted and in such a manner so as not to interfere with the normal business operations of the Acquired Companiessuch Seller Party, to all premises, properties, personnel, books, records (C) coordinated through the Company’s chief executive officer or designee thereof including Tax records and (D) conducted at Buyer’s sole cost and expenseemployment records), contracts, and Sellers shall have documents of or pertaining to RSP and RSP-TW (including as may be controlled by or in the right to have one or more possession of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(aa Seller Party). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, howeverthat the applicable Seller Party may restrict or otherwise prohibit access to any documents or information of or relating to such Seller Party, that, RSP or RSP-TW to the extent such Seller Party or RSP determines in such instances, good faith that any applicable Law or any contracts requires it to do so. The Sellers shall inform Buyer of keep the general nature of Data Room open until the information being withheld andClosing, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of make the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything Data Room available to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates Purchasers and its Representatives not to, contact any vendor, supplier or customer in the same manner as the Sellers made the Data Room available as of an Acquired Company regarding and prior to the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyEffective Date.
(b) Buyer Until the earlier of the termination of this Agreement and the Closing Date, the Seller Parties will, and will hold cause the officers, counsel or other Representatives of the Seller Parties to, promptly notify Purchaser Parent of any material changes or developments in the operational matters of RSP or RSP-TW, and to confer from time to time as requested by Purchaser Parent and reasonably agreed by such Seller Party with one or more Representatives of Purchaser Parent during ordinary business hours to discuss, any material changes or developments in the operational matters of RSP or RSP-TW and the general status of the ongoing business and operations of RSP and RSP-TW. To the extent Purchaser Parent requests further information obtained pursuant or investigation of the basis of any potential violations of Law, including Laws related to Section 5.2(a) in confidence in accordance export control and the FCPA, based on reasonable evidence for such existing or potential violations of Law, the Seller Parties will, and will cause the officers, counsel or other Representatives of the Seller Parties to cooperate with the Confidentiality Agreementsuch request and will make available any personnel or experts engaged by any Seller Party necessary to accommodate such request.
Appears in 1 contract
Access to Information. (a) During Buyer shall preserve for a period of six (6) years following the Pre-Closing PeriodClosing, Sellers shallall Business Records possessed or to be possessed by Buyer relating to any of the Purchased Assets, and Assumed Liabilities or the Business prior to the Closing. Buyer shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer Seller and its Representatives representatives with reasonable access access, upon prior reasonable written request, during regular business hours, to (i) all the officers and employees of Buyer and the Acquired Companies’ properties, assets, books Business and records, (ii) all senior management Business Records of the Acquired Companies and (iii) any other information relating solely Buyer, but, in each case, only to the businessextent relating to the Purchased Assets, propertiesAssumed Liabilities or the Business prior to the Closing and only to the extent reasonably required in order for them to prepare financial statements and Returns and to deal with Tax audits and to defend third-party Actions and, assetsin connection therewith, books the Seller and records and personnel its representatives shall have the right to make copies of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All such Business Records at their sole cost; provided that such access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as does not to interfere with unreasonably disrupt the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, howeverfurther, that, that such access shall comply with applicable Law. Seller may only use any such information for the purposes set forth in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, this Section 4.1 and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any otherwise maintain such information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality AgreementAgreements as if it were the recipient of such information under, and bound by the confidentiality obligations set forth in, the Confidentiality Agreements. The Seller shall preserve, for a period of six (6) years following the Closing, all Excluded Business Records and shall grant the Buyer access to such Excluded Business Records only to the extent reasonably required for a legitimate business purpose, on the same terms as set out herein, mutatis mutandis.
(b) Except as required by applicable Law or the rules or regulations of any securities exchange, the terms and conditions of this Agreement and any Ancillary Agreements will be kept confidential by the Parties hereto and thereto and will not be used by any such Party other than (i) as contemplated by this Agreement and the Ancillary Agreements, (ii) with respect to any disclosures by any such Party to (A) its auditors, accountants or any of its legal, tax or financial advisors or (B) current or prospective investors of such Party or to any potential acquirer of such Party or its assets; provided, that in all such cases such persons shall be informed of the confidential nature of such information and the obligations hereunder and the disclosing Party shall remain liable for any breach by such persons, or (iii) the enforcement by such Party of its rights under this Agreement or the Ancillary Agreements.
Appears in 1 contract
Access to Information. (a) During From the Pre-date hereof until the Closing PeriodDate, the Sellers shallwill, and shall cause the Acquired Companies tosubject to existing confidentiality obligations owed to third parties, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expensegive, and Sellers shall have the right will cause each Company and Subsidiary to have one or more of their Representatives present at all times during any visitsgive, examinationsBuyer, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisorsadvisors and providers of financing, auditors and other authorized Representatives representatives reasonable access to the offices, properties, books and records of the Companies and the Subsidiaries and to the books and records of the Sellers relating to the Companies and the Subsidiaries, (ii) furnish, and will cause the Companies and the Subsidiaries to furnish, to Buyer, its counsel, financial advisors and providers of financing, auditors and other authorized representatives such financial and operating data and other information relating to the Companies and the Subsidiaries as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of the Sellers, the Companies and the Subsidiaries to cooperate with Buyer in its investigation of the Acquired CompaniesCompanies and the Subsidiaries. Notwithstanding anything Any investigation pursuant to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company this Section shall be required conducted in such manner as not to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize interfere unreasonably with the attorney-client privilege or other immunity or protection from disclosure conduct of Sellers the business of any Seller or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanySubsidiary.
(b) On and after the Closing Date, the Sellers will afford promptly to Buyer will hold and its agents reasonable access to its books of account, financial and other records (including, without limitation, accountant's work papers), information, employees and auditors to the extent necessary or useful for Buyer in connection with any information obtained pursuant audit, investigation, dispute or litigation or any other reasonable business purpose relating to Section 5.2(a) in confidence in accordance any Company or Subsidiary; provided that any such access by Buyer shall not unreasonably interfere with the Confidentiality Agreementconduct of the business of the Sellers. Buyer shall bear all of the out-of-pocket costs and expenses (including, without limitation, attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with the foregoing.
(c) Notwithstanding Sections 5.02(a) and 5.02(b), Buyer shall not have access to (i) any books and records, data or other information the disclosure of which could, in the Sellers' good faith opinion, result in the loss of attorney-client privilege with respect to such books and records, data or other information, (ii) any books and records, data or other information the disclosure of which could, in the Sellers' good faith opinion, cause any Seller or any Company or Subsidiary to violate any laws or regulations or any contracts or instruments to which any Seller or any Company or Subsidiary is a party or to which any of its assets is subject, or (iii) personnel records of the Companies and the Subsidiaries relating to individual performance or evaluation records, medical histories or other information the disclosure of which could, in the Sellers' good faith opinion, subject any Company or Subsidiary to risk of liability.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nalco Energy Services Equatorial Guinea LLC)
Access to Information. (a) During From and after the Pre-date hereof until the Closing PeriodDate, Sellers shallsubject to the terms of the Confidentiality Agreement, and shall upon reasonable prior notice, ACP Holding and the Company will afford and will cause NFC Castings and the Acquired Companies to, use commercially reasonable efforts Company's Subsidiaries to provide Buyer afford the Investors and its their Representatives with reasonable full and complete access to (i) all the books, records and properties of ACP Holding, NFC Castings, the Acquired Companies’ properties, assets, books Company and records, (ii) all senior management of the Acquired Companies Company's Subsidiaries and (iii) any other information relating solely the opportunity to discuss the business, propertiesaffairs and finances of ACP Holding, assetsNFC Castings, books the Company and records the Company's Subsidiaries and personnel Affiliates with directors, officers, employees, accountants, attorneys and representatives of ACP Holding, NFC Castings, the Acquired Companies Company and the Company's Subsidiaries and Affiliates in order to enable the Investors and their Representatives to make such investigations of ACP Holding, NFC Castings, the Company, the Company's Subsidiaries and Affiliates and their respective businesses as Buyer the Investors and their Representatives reasonably deem appropriate. Each of ACP Holding and the Company agrees that it will cause the officers and employees of ACP Holding, NFC Castings, the Company and the Company's Subsidiaries and Affiliates, and will request their respective legal counsel and accountants, to cooperate so that the Investors can complete such review, including promptly disclosing to the Investors any material fact known to such parties which has resulted in, or could reasonably be expected to result in, a Material Adverse Change or the occurrence of any of its Representatives may reasonably requestTermination Event. All access and Any investigation pursuant to this Section 5.2(a) Section shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired Companiesbusiness of ACP Holding, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing PeriodNFC Castings, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assetsCompany's Subsidiaries and Affiliates. No investigation by the Investors or other information received by the Investors shall operate as a waiver or otherwise affect any representation, warranty or operation of agreement given or made by the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyRepresenting Persons hereunder.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From the date hereof until the Closing Date, and subject to applicable Law and Section 7.11, RPM, the Company and each Seller shall (a) During the Pre-Closing Period, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts give to provide Buyer and its counsel, financial advisors, auditors and other authorized Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assets, books and records and personnel of the Acquired Companies Company and its Subsidiaries, (b) furnish to Buyer and its counsel, financial advisors, auditors and other authorized Representatives such financial and operating data and other information as Buyer or any of its Representatives such Persons may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof request and (Dc) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its the employees, counsel, financial advisors, auditors and other authorized Representatives of the Company and its Subsidiaries to cooperate with Buyer in its investigation of the Acquired CompaniesCompany and its Subsidiaries. Any investigation pursuant to this Section 7.14 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries. Notwithstanding anything to the contrary contained hereinforegoing, during none of the Pre-Closing Period, neither Sellers nor Business Entities or any Acquired Company Seller shall be required to provide access PROVIDE ACCESS TO OR DISCLOSE INFORMATION WHERE SUCH ACCESS OR DISCLOSURE WOULD VIOLATE ANY LAW OR WAIVE ANY ATTORNEY-CLIENT OR OTHER SIMILAR PRIVILEGE, AND THE BUSINESS ENTITIES AND THE SELLERS MAY REDACT INFORMATION NOT RELATING TO THE BUSINESS, AND, IN THE EVENT SUCH PROVISION OF INFORMATION WOULD REASONABLY BE EXPECTED TO VIOLATE ANY LAW OR WAIVE ANY ATTORNEY-CLIENT OR OTHER SIMILAR PRIVILEGE, THE BUSINESS ENTITIES, THE SELLERS AND BUYER SHALL TAKE ALL REASONABLE MEASURES TO PERMIT THE COMPLIANCE WITH SUCH OBLIGATIONS IN A MANNER THAT AVOIDS ANY SUCH HARM OR CONSEQUENCE. NO INFORMATION OR KNOWLEDGE OBTAINED BY BUYER OR ANY OF ITS AFFILIATES OR REPRESENTATIVES (INCLUDING IN ANY INVESTIGATION PURSUANT TO THIS SECTION 7.14) shall affect or disclose information where such access be deemed to modify any representation, warranty or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or agreement made by any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyhereunder.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Royalty Pharma PLC)
Access to Information. (a) During From the Pre-date of this Agreement through the Closing PeriodDate, Sellers LIH shall, and shall cause the Acquired Companies Company to, use commercially reasonable efforts to provide Buyer and its Representatives confer (which may be telephonically) with reasonable access to Equity One on a weekly basis (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely subject to the business, properties, assets, books and records and personnel of provisos in the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant following sentence) with respect to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof business and (D) conducted at Buyer’s sole cost and expensethe Properties generally. Without limiting the foregoing, and Sellers shall have the right with respect to have one or more of their Representatives present at all times during any visitseach Property, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers LIH shall, and shall cause the Acquired Companies Company to, use commercially reasonable efforts afford to cause Equity One and its employeeslenders, counselaccountants, financial advisors, auditors counsel and other representatives reasonable access, upon reasonable notice during normal business hours and, at LIH’s election, in the presence of an authorized Representatives to cooperate with Buyer in its investigation representative of the Acquired Companies. Notwithstanding anything to the contrary contained hereinCompany, during the Pre-period prior to the Closing PeriodDate, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where all the records, due diligence materials, personnel, properties, books, Contracts and Tax Returns of such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation Property and relevant subsidiaries of the businessCompany, of Sellers or and during such period shall furnish promptly to Equity One any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the information concerning such Property and applicable Acquired Company) to which an Acquired Company is party or by which any subsidiary of the Acquired Companies’ assets or properties are boundCompany as Equity One may reasonably request; provided, however, that, in that such instances, Sellers shall inform Buyer access does not unreasonably disrupt the normal operations of the general nature of the information being withheld Company or Properties; and, upon Buyer’s request and provided, further, such access shall not include or contemplate any intrusive investigation (an “Investigation”) of any Property (whether by testing, sampling, digging, boring or otherwise), without the express prior written consent of LIH. All such Investigations, if any, shall be at B▇▇▇▇Equity One’s sole cost and expense, reasonably cooperate with Buyer . Equity One assumes all risk and expense relating to provide such information, in whole or in part, in a manner that would not result in any of Equity One’s entry on the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall notProperty, and Equity One hereby agrees to indemnify, defend, protect and hold LIH and the Company and their respective officers, directors, employees, agents and representatives harmless from and against any and all Losses resulting from any such Investigation. The indemnification obligations of Equity One set forth in this Section 5.10(a) shall cause its Affiliates and its Representatives not to, contact survive the Closing or any vendor, supplier expiration or customer earlier termination of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyAgreement.
(b) Buyer will hold any information obtained pursuant From the date of this Agreement through the Closing Date, LIH shall cause the Company to Section 5.2(a) in confidence in accordance use its commercially reasonable efforts, upon Equity One’s request, to arrange interviews with the Confidentiality Agreement.tenants under Material Leases set forth on Schedule
Appears in 1 contract
Access to Information. (a) During Upon reasonable advance notice, between the Pre-date of this Agreement and the Closing PeriodDate, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer Company and its Representatives with reasonable access Subsidiaries to (i) all of the Acquired Companies’ propertiesgive Buyer, assetsits potential financing sources and, books as applicable, its and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, respective counsel, financial advisors, auditors and other authorized representatives (collectively, "Buyer's Representatives") reasonable access during normal business hours to the offices, properties, books and records (including all Tax Returns and other Tax-related information) of the Company and its Subsidiaries, (ii) furnish to Buyer's Representatives such financial and operating data and other information (including all Tax Returns and other Tax-related information) relating to the Company, its Subsidiaries and their respective operations as Buyer's Representatives may reasonably request and (iii) instruct the employees, counsel and financial advisors of the Company and its Subsidiaries to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything business of the Company and its Subsidiaries; provided, however, that such access shall only be provided to the contrary contained hereinextent that such access would not violate applicable Laws or the terms of any Company Contract or result in a loss of the attorney-client privilege; provided, during further that if any information is not made available to Buyer because such access would result in a loss of the Preattorney-Closing Periodclient privilege, neither Sellers nor any Acquired shall notify Buyer that information is being so withheld, and Sellers shall cause the Company shall be required or its Subsidiaries, as applicable, to provide access or disclose the maximum amount of information where such access or disclosure would, relating to the matter that would not result in Sellers’ reasonable judgment, (1) jeopardize a loss of the attorney-client privilege or other immunity or protection from (and to the extent such disclosure of will not impair the attorney-client privilege, Sellers or any Acquired shall use cause the Company or (2)(x) conflict with any Law or Order applicable its Subsidiaries, as applicable, to Sellers or any Acquired Company or identify and described the assetsinformation being withheld). Without limiting the foregoing, or operation to the extent such actions are required pursuant to the terms of the businessClosing Indebtedness Financing and the Subsequent Indebtedness Financing, Buyer and its Representatives shall be permitted to conduct an environmental investigation of the Company, its Subsidiaries and their respective properties, including, at Buyer's reasonable discretion, the performance of environmental sampling. If an environmental investigation is required to be conducted pursuant to the previous sentence, Sellers or any Acquired shall cause the Company or (y) materially breach any Contract (and its Subsidiaries to fully cooperate with Buyer and its Representatives in connection with such investigation, including, making available personnel, outside contractors and outside consultants with knowledge of environmental matters pertaining to the Company, its Subsidiaries and their properties, making available relevant documents related to such matters, and providing necessary assistance with respect to the obligations placed therein any proposed environmental sampling, including providing accurate information regarding subsurface utilities or structures that could interfere with or prevent such proposed sampling. The parties hereby acknowledge that UBS Securities LLC, on the applicable Acquired Company) to which an Acquired Company is party or by which any behalf of the Acquired Companies’ assets or properties are bound; providedCompany, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost ▇▇ ▇. ▇▇▇ Partners L.P. executed a Confidentiality Agreement, dated May 20, 2004, as the same may be amended, supplemented or modified (the "Confidentiality Agreement"), and expensethe parties agree that the Company and Buyer shall continue to be bound by terms and conditions thereof, reasonably cooperate with Buyer to provide such information, which shall remain in whole or in part, in a manner that would not result in any of full force and effect until the outcomes described in the foregoing clauses (1) or (2)Closing Date. Notwithstanding anything Any information relating to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned Company or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained Subsidiaries made available pursuant to Section 5.2(a) in confidence in accordance with this Section 6.2, shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the Closing, Sellers shallupon reasonable notice, and the Seller shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all afford the officers, employees and authorized agents and representatives of the Acquired Companies’ propertiesPurchaser reasonable access, assetsduring normal business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assets, books and records and personnel of the Acquired Companies Seller relating to the Assets, the Assumed Liabilities and the Business and (ii) furnish to the officers, employees and authorized agents and representatives of the Purchaser such additional information regarding the Assets, the Assumed Liabilities and the Business as Buyer or any of its Representatives the Purchaser may from time to time reasonably request. All access and ; PROVIDED, HOWEVER, that such investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner so as not to interfere unreasonably with the normal business or operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanySeller.
(b) Buyer will hold In order to facilitate the resolution of any claims made by or against or incurred by the Seller with respect to the period prior to the Closing, after the Closing, upon reasonable notice, the Purchaser shall (i) afford the officers, employees, shareholders and authorized agents and representatives of the Seller reasonable access, during normal business hours, to the offices, properties, books and records of the Purchaser relating to the Assets, the Assumed Liabilities and the Business, (ii) furnish to the officers, employees, shareholders and authorized agents and representatives of the Seller such additional financial and other information obtained pursuant regarding the Assets, the Assumed Liabilities and the Business as the Seller may from time to Section 5.2(atime reasonably request and (iii) make available to the Seller the employees of the Purchaser whose assistance, testimony or presence is necessary to assist the Seller in confidence evaluating any such claims and in accordance defending such claims, including the presence of such persons as witnesses in hearings or trials for such purposes; PROVIDED, HOWEVER, that such investigation shall be conducted in a manner so as not to interfere unreasonably with any of the Confidentiality Agreementbusinesses or operations of the Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Building Materials Holding Corp)
Access to Information. (a) During the Pre-Closing PeriodFollowing execution of this Agreement, Sellers shallupon reasonable notice, Seller shall afford to officers, employees, counsel, accountants, prospective financing sources, and shall cause other authorized representatives of Buyer (“Representatives”), full, open, continuing and reasonable access, upon reasonable notice throughout the Acquired Companies toperiod prior to the Closing Date, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ equipment, personal and intangible properties, assetsfacilities and real properties, (ii) accounting files, financial and operating data, budgets, projections and plans, (iii) regulatory and other government filings, (iv) employment records, policies and files, (v) material contracts, agreements and undertakings, (vi) environmental filings and tax returns, (vii) reports, schedules, books and records, (ii) all senior management of the Acquired Companies and (iiiviii) any other information relating solely relevant to the Seller’s business, propertiesincluding without limitation any Proceedings against Seller, assets(collectively, books the “Information”); and, during such period, Seller shall furnish or make available reasonably promptly to such Representatives copies of all such Information (in addition to the information and records and personnel materials which Buyer has previously received) as may reasonably be requested, including but not limited to a copy of each report, schedule or other document filed with or received by Seller from any Governmental Entity at any time prior to the Acquired Companies as Buyer or any Closing. Seller shall make reasonably available all of its Representatives may reasonably request. All access and investigation pursuant officers, employees, agents or advisors to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expenseRepresentatives for purposes of reviewing, and Sellers shall have the right to have one or more of their Representatives present at all times during any visitsproviding, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assetsdiscussing, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which describing any of the Acquired Companies’ assets Information or properties are bound; providedotherwise keeping the Buyer and its Representatives apprised with respect to, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon and responding to Buyer’s request and at B▇▇▇▇inquiries regarding, the Seller’s sole cost and expense, reasonably cooperate with business. Buyer to provide such information, in whole or in part, in a manner agrees that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall it will not, and shall will cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold use any information obtained pursuant to Section 5.2(a) in confidence in accordance with this Section for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. The Confidentiality Agreement, dated January 31, 2006 (the “Confidentiality Agreement”), by and between Seller and Buyer shall apply with respect to information furnished by Seller or its respective officers, employees, counsel, accountants and other authorized representatives hereunder. No information or knowledge obtained in any investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty contained in this Agreement or the conditions to the obligations of the parties to consummate the transactions contemplated thereby.
Appears in 1 contract
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the earlier of the Effective Time and the termination of this Agreement in accordance with its terms and subject to Applicable Law and the Confidentiality Agreement, Sellers the Company shall, and shall cause the Acquired Companies each of its Subsidiaries to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of give to Parent, its counsel, financial advisors, auditors and other authorized representatives reasonable access during normal business hours to the Acquired Companies’ employees, offices, properties, assets, books and recordsrecords of such party, (ii) furnish reasonably promptly to Parent, its counsel, financial advisors, auditors and other authorized representatives all senior management of information (financial or otherwise) as such Persons may reasonably request concerning the Acquired Companies Company’s and its Subsidiaries’ business, properties and personnel, and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause instruct its employees, counsel, financial advisors, auditors and other authorized Representatives representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer Parent in its investigation. Any investigation pursuant to provide such information, in whole or in part, in a manner that would not result in any this Section 6.04 shall be conducted under supervision of appropriate personnel of the outcomes described Company and in such manner as not to unreasonably interfere with the foregoing clauses (1) or (2). Notwithstanding anything to conduct of the contrary contained herein, during business of the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall notCompany, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier include the collection or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities analysis of any Acquired Companyenvironmental samples.
(b) Buyer Notwithstanding the foregoing in this Section 6.04 or the provisions of Section 8.01, the Company may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided under this Section 6.04 and Section 8.01 as either “Outside Counsel Only Material” or “Antitrust Restricted Material.” Antitrust Counsel Only Material and the information contained therein shall be given only to the outside counsel of the recipient and will hold not be disclosed by such outside counsel to employees, officers, directors or other Representatives of the recipient unless express permission is obtained in advance from the Company or its legal counsel. Antitrust Restricted Material and the information contained therein shall be given only to outside antitrust counsel and other outside Representatives of the recipient and employees, officers or directors of the recipient approved by the Company, and will not be disclosed by such Persons to other employees, officers or directors of the recipient unless express permission is obtained in advance from the Company or its legal counsel. Anything to the contrary contained in this Section 6.04 and Section 8.01 notwithstanding, materials provided pursuant to this Section 6.04 or Section 8.01 may be redacted (i) as necessary to comply with terms of any applicable confidentiality arrangements to which the Company or any of its Subsidiaries is a party as of the date hereof (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure that does not result in a violation), and (ii) as necessary to address reasonable legal privilege concerns (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure to the maximum extent that does not result in such loss of any such attorney-client, attorney work product or other legal privilege).
(c) Parent will hold, and will cause its Representatives and affiliates to hold, any nonpublic information, including any information obtained exchanged pursuant to Section 5.2(a) this Section 6.04 and Section 8.01, in confidence to the extent required by and in accordance with with, and will otherwise comply with, the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During Between the Pre-Closing Perioddate hereof and the Effective Time, Sellers shallthe Company will give Parent and Merger Sub and their authorized representatives (including counsel, financial advisors and shall auditors) reasonable access during normal business hours to all employees, plants, offices, warehouses and other facilities and to all books and records of the Company and its subsidiaries, will permit Parent and Merger Sub to make such inspections as Parent and Merger Sub may reasonably require and will cause the Acquired Companies to, use commercially reasonable efforts Company's officers and those of its subsidiaries to provide Buyer furnish Parent and its Representatives Merger Sub with reasonable access to (i) all of the Acquired Companies’ properties, assets, books such financial and records, (ii) all senior management of the Acquired Companies operating data and (iii) any other information relating solely with respect to the business, properties, assets, books and records properties and personnel of the Acquired Companies Company and its subsidiaries as Buyer Parent or any of its Representatives Merger Sub may from time to time reasonably request. All access and , provided, that no investigation pursuant to this Section 5.2(aSection 5.3(a) shall affect or be (A) conducted during normal business hours upon reasonable advance notice deemed to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which modify any of the Acquired Companies’ assets representations or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of warranties made by the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant Between the date hereof and the Effective Time, the Company shall furnish to Section 5.2(aParent, (i) concurrently with the delivery thereof to management, such monthly financial statements and data as are regularly prepared for distribution to Company management and (ii) at the earliest time they are available, such quarterly and annual financial statements as are prepared for the Company's SEC filings, which (in confidence the case of this clause (ii)) shall be in accordance with the books and records of the Company. Between the date hereof and the Effective Time, Parent shall furnish to the Company, at the earliest time they are available, such quarterly and annual financial statements as are prepared for Parent's SEC filings, which shall be in accordance with the books and records of Parent.
(c) Parent will hold and will cause its authorized representatives to hold in confidence all documents and information concerning the Company and its subsidiaries furnished to Parent in connection with the transactions contemplated by this Agreement pursuant to the terms of that certain Confidentiality AgreementAgreement entered into between the Company and Parent dated September 9, 2001 (the "CONFIDENTIALITY AGREEMENT"). The Company will hold and will cause its authorized representatives to hold in confidence all documents and information concerning Parent and its subsidiaries furnished to the Company in connection with the transactions contemplated by this Agreements pursuant to the terms of that certain Confidentiality Agreement entered into between the Company and Parent dated September 24, 2001 (the "PARENT CONFIDENTIALITY AGREEMENT").
(d) Any documents or information disclosed by the Company or any of its subsidiaries to Parent pursuant to Section 3.18(a), Section 5.1 or clause (a) or (b) of this Section 5.3 shall be used by Parent solely for the evaluation of, and/or transitional planning in connection with, the transactions contemplated hereby and shall, for the avoidance of doubt, be subject to clause (c) of this Section 5.3; provided that the restrictions set forth in this clause (d) shall not apply to the disclosure of any document or information that is exempted from the confidentiality restrictions set forth in the Confidentiality Agreement pursuant to the terms thereof.
Appears in 1 contract
Sources: Merger Agreement (Avant Corp)
Access to Information. From January 30, 2001 to the Closing or until this Agreement is terminated as provided in Article VIII, Seller shall cause the Company and the Subsidiaries to, and the Company and the Subsidiaries shall, provide to the Buyer Parties reasonable and prompt access to all of their books, records (aincluding making copies as reasonably requested), assets, properties and (to the extent available) During the Pre-Closing Period, Sellers shallemployees, and shall cause to be furnished to the Acquired Companies Buyer Parties such information in the possession or control of the Seller, the Company or the Subsidiaries as Buyer may reasonably request, upon prior notice and during normal business hours, unless such access and disclosure would violate the terms of any agreement to which the Seller, the Company or any Subsidiary is bound or any applicable law or regulation or the Seller reasonably concludes, upon the advice of counsel, that such access or disclosure might be expected to result in the loss of an available legal privilege. Notwithstanding the provisions of the preceding sentence, any access to the books, records, assets, properties and employees of and information relating to, use commercially reasonable efforts Atlantic shall be subject to the prior receipt, by the Buyer Parties, of Conoco's consent to such access. The Seller and the Buyer Parties shall cooperate fully in the effort to identify a means of disclosing any information requested by the Buyer in a manner that will preserve, for the Seller, the Company and the Subsidiaries, any legal privilege available with respect to that information in the event that the Transactions are not consummated. Subject to the foregoing, the Seller shall cause the Company and the Subsidiaries to, and the Company and the Subsidiaries shall, provide Buyer to the Buyer, its representatives and its Representatives with reasonable agents, access to (i) all the books, records, and employees of the Acquired Companies’ properties, assets, books Company and records, (ii) all senior management the Subsidiaries to allow the Buyer to make presentations to and provide information to the employees of the Acquired Companies Company and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of Subsidiaries regarding the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound's benefit plans; provided, however, that, in such instances, Sellers that the Buyer shall inform Buyer not distribute any written materials to the employees of the general nature of Company and the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, Subsidiaries without the Seller's prior written consent approval of Sellers (such materials, which consent approval shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (yii) Buyer shall have no right to perform invasive or subsurface investigations the management information systems employees of the properties or Company and the Subsidiaries, and for demonstrative purposes only, the computer hardware, software, systems and facilities of the Company and the Subsidiaries and all books and records of the Company Parties, and all books and records of Atlantic in the possession or control of the Company Parties, related thereto. The confidentiality of any Acquired Company.
data or information acquired pursuant to this Section 5.1 shall be maintained by Buyer and its representatives pursuant to the terms of the letter agreement between API and Sal▇▇▇▇ ▇▇▇▇▇ ▇▇r▇▇▇ ▇▇c. on behalf of the Seller, dated June 22, 2000 (b) the "Confidentiality Agreement"), which each of the above-named parties hereby acknowledges is binding on it; provided, however, that in the event that this Agreement is terminated as provided in Article VIII, the obligation of the Buyer will hold Parties to maintain the confidentiality of any information obtained pursuant and data provided to Section 5.2(a) in confidence in accordance with them under this Section 5.1 and the obligation of the Buyer Parties, under the Confidentiality Agreement, not to solicit for employment any of the current employees of the Company and the Subsidiaries with whom any of the Buyer Parties has been directly or indirectly introduced or otherwise had contact or become aware of in connection with the Transactions shall remain in effect until the second anniversary of the date of termination of this Agreement.
Appears in 1 contract
Access to Information. (a) During Except as may be prohibited by applicable Law, from the Pre-Closing Perioddate of this Agreement until the Closing, upon reasonable notice, Sellers shall, and shall cause the Acquired Companies toeach of Sellers’ officers, use commercially reasonable efforts to provide Buyer directors, employees, agents, accountants, counsel and its Representatives with reasonable access other representatives and advisors to (i) all afford the officers, accountants and counsel of the Acquired Companies’ propertiesPurchaser (and Purchaser’s potential financing sources) (x) full access, assetsduring normal business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assetsoffices, books and records and personnel Contracts of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be Sellers (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during extent they relate to the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1Business and are not privileged) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or and (y) materially breach any Contract access reasonably regulated by Sellers, to customers, suppliers, properties (with respect to the obligations placed therein on extent they relate to the applicable Acquired CompanyBusiness and are not privileged) of Sellers and to which an Acquired Company is party or by which those employees of Sellers who have any significant knowledge of the Acquired CompaniesBusiness and Sellers’ assets or properties are boundSouth Charleston Business; and (ii) furnish to the officers, accountants, counsel and other advisors of Purchaser (and Purchaser’s potential financing sources) such additional financial and operating data and other information regarding the Business and Sellers’ South Charleston Business as Purchaser (and its financing sources) may from time to time reasonably request; provided, however, that, in such instances, Sellers shall inform Buyer that none of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate foregoing shall unreasonably interfere with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) businesses or (2). Notwithstanding anything to the contrary contained hereinoperations of Sellers; provided, during the Pre-Closing Periodfurther, without the prior written consent of Sellers (which consent that access shall not be unreasonably withheldobtained under this Section 5.02 to the Tax Returns of Sellers, conditioned except to the extent relating to the Business to a material extent. All information obtained by Purchaser, its officers, accountants or delayed), (xcounsel pursuant to this Section 5.02(a) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding be kept confidential in accordance with the business, operations, or prospects provisions of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyConfidentiality Agreement.
(b) Buyer will hold any information obtained For a period of six (6) years after the Closing, Purchaser shall (i) retain the books and records of Sellers which are transferred to Purchaser pursuant to Section 5.2(a) this Agreement and which relate to periods prior to the Closing in confidence in accordance a manner reasonably consistent with the Confidentiality Agreementprior practices of Sellers; and (ii) upon reasonable notice, afford the officers, employees and authorized agents and representatives of Sellers (or the Other Business Purchaser as the successor in interest to Seller’s South Charleston Business) reasonable access (including the right to make photocopies, at Seller’s expense), during normal business hours, to such books and records; provided, however, that none of the foregoing shall unreasonably interfere with any of the businesses or operations of Purchaser, and provided further that access shall not be obtained under this Section 5.02 (b) to the Tax Returns of Purchaser, except to the extent related to the Business.
(c) For a period of six (6) years following the Closing, Sellers or their successors or representatives shall (i) retain all books and records of Sellers (for periods prior to the Closing and to the extent they relate to the Business) that are not transferred to Purchaser pursuant to this Agreement and that shall not otherwise have been delivered to Purchaser in a manner reasonably consistent with the prior practices of Sellers, and (ii) upon reasonable notice, afford the officers, employees and authorized agents and representatives of Purchaser, reasonable access (including the right to make photocopies at the expense of Purchaser), during normal business hours, to such books and records and provided further that no access shall be provided to the Tax Returns of Sellers, except to the extent related solely to the Business.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Commercial Vehicle Group, Inc.)
Access to Information. (a) During Upon reasonable prior notice and subject to applicable Law, from the Pre-Closing Perioddate hereof until the Effective Time, Sellers Beeline shall, and shall cause the Acquired Companies its officers, directors, employees and representatives of Beeline to, use commercially reasonable efforts to provide Buyer afford Eastside and its Representatives officers, directors, employees and representatives, following notice from Eastside to Beeline in accordance with this Section 5.4, reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely during normal business hours to the businessofficers, employees, agents, properties, assetsoffices and other facilities, books and records of Beeline and personnel of the Acquired Companies its subsidiaries, and all other financial, operating and other data and information as Buyer or any of its Representatives Eastside may reasonably request. All access and investigation pursuant Notwithstanding the foregoing, Beeline shall not be obligated to this Section 5.2(adisclose any information that, in the reasonable judgment of B▇▇▇▇▇▇, (i) it is not legally permitted to disclose or the disclosure of which would contravene any applicable Law or court order or (ii) the disclosure of which would be reasonably likely to cause the loss of any attorney-client or other legal privilege or trade secret protection held by Beeline. Beeline shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right entitled to have one or more of their Representatives representatives present at all times during any visitssuch inspection. No investigation pursuant to this Section 5.4 or information provided, examinationsmade available or delivered to Eastside pursuant to this Section 5.4 or otherwise shall affect any representations or warranties of Beeline or conditions or rights of Eastside contained in this Agreement.
(b) Upon reasonable prior notice and subject to applicable Law, discussions or contacts contemplated by this Section 5.2(a). During from the Pre-Closing Perioddate hereof until the Effective Time, the Sellers Eastside shall, and shall cause the Acquired Companies its officers, directors, employees and representatives of Eastside to, use commercially afford Beeline and its officers, directors, employees and representatives, following notice from Beeline to Eastside in accordance with this Section 5.4, reasonable efforts access during normal business hours to the officers, employees, agents, properties, offices and other facilities, books and records of Eastside and its subsidiaries, and all other financial, operating and other data and information as Beeline may reasonably request. Notwithstanding the foregoing, Eastside shall not be obligated to disclose any information that, in the reasonable judgment of Eastside, (i) it is not legally permitted to disclose or the disclosure of which would contravene any applicable Law or court order or (ii) the disclosure of which would be reasonably likely to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation the loss of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client or other legal privilege or other immunity trade secret protection held by Eastside. Eastside shall be entitled to have representatives present at all times during any such inspection. No investigation pursuant to this Section 5.4 or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; information provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer made available or delivered to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained Beeline pursuant to Section 5.2(a) this Section 5.4 or otherwise shall affect any representations or warranties of Eastside or conditions or rights of Beeline contained in confidence in accordance with the Confidentiality this Agreement.
Appears in 1 contract
Access to Information. (a) During Until the Pre-Closing PeriodDate, Sellers shall, and the Company shall cause the Acquired Companies to, use commercially its reasonable best efforts to provide Buyer and its Representatives with reasonable access to (i) all afford to the officers, employees, accountants, counsel, financing sources and other representatives of the Acquired Companies’ propertiesInvestor (collectively, assets"Advisors"), books 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 Investor and its Advisors with copies of all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assetssuch contracts, books and records and personnel of other existing documents and data as the Acquired Companies as Buyer or any of Investor and/or its Representatives Advisors may reasonably request. All access and investigation pursuant to this Section 5.2(a; (iii) shall be (A) conducted make available during normal business hours upon reasonable advance notice to Sellersthe Advisors the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company's business, properties, prospects and personnel as the Investor may reasonably request; and (Biv) conducted furnish the Investor and its Advisors with such additional financial, operating and other data and information concerning the Company and the Subsidiary as the Investor and/or its Advisors may reasonably request and as may be reasonably available to the Company; provided, however, that nothing in such a manner as not this Section 5.4(a) or otherwise shall require the Company to interfere furnish to the Investor or its Advisors any materials prepared by the Company's financial advisors or legal advisors.
(b) The Investor shall keep all information disclosed to the Persons identified in clause (a) above pursuant to this Agreement confidential in accordance with the normal operations terms of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired CompaniesConfidentiality Agreement. Notwithstanding anything to the contrary contained hereinherein or in the Confidentiality Agreement, during the Pre-Closing Periodparties hereto and each of their respective employees, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege representatives or other immunity or protection from disclosure agents, are permitted to disclose to any and all Persons, without limitations of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or kind, the assets, or operation tax treatment and tax structure of the business, transactions contemplated hereby and all materials of Sellers any kind (including opinions or any Acquired Company other tax analyses) that are or (y) materially breach any Contract (with respect have been provided to the obligations placed therein on the applicable Acquired Company) such parties related to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundsuch tax treatment and tax structure; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) 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 (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent tax structure of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and hereby (y) Buyer shall have no right to perform invasive or subsurface investigations of including the properties or facilities identity of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) party and the amounts paid in confidence in accordance connection with the Confidentiality Agreementtransactions); provided, further, however, that the tax treatment and tax structure shall be kept confidential to the extent necessary to comply with federal or state securities laws.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers 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 Acquired Companies toCompany 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, (B) furnish to the Representatives of Seller such additional financial and other information regarding the Company Group and the Business relating to periods prior to the Closing Date as Seller or its Representatives may from time to time reasonably request and (C) make available to the Representatives of the Seller and its 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 assist the Seller in connection with its inquiries for any of the purposes referred to above. If reasonably requested by Purchaser based on the advice of counsel 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). Prior to incurring any material out-of-pocket expenses associated with requests made by Seller under this Section 5.02(b), Purchaser and 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 (or Purchaser’s Affiliates) for reasonable out-of-pocket expenses associated with requests made by Seller under this Section 5.02(b). Any information provided to Seller and its Representatives pursuant to this Section 5.02(b) shall be considered Confidential Information and subject to Section 5.03.
(c) Purchaser agrees that it shall use commercially reasonable efforts to provide Buyer preserve and its Representatives with reasonable access keep, or cause to (i) be preserved and kept, all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel in respect of the Acquired Companies 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 Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any by Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyEducational Law.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Adtalem Global Education Inc.)
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the Closing, upon reasonable notice, the Sellers shallshall cause each of their officers, employees, agents, representatives, accountants and counsel, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all the Subsidiaries and each of the Acquired Companies’ and the Subsidiaries’ officers, directors, employees, agents, representatives, accountants and counsel to: (i) afford the officers, employees, agents, accountants, counsel, financing sources and representatives of the Purchaser reasonable access, during normal business hours, under reasonable circumstances and at mutually agreed locations, to the offices, properties, assetsplants, other facilities, books and recordsrecords of each Acquired Company and Subsidiary and to those officers, (ii) all senior management employees, agents, accountants and counsel of any of the Sellers, the Acquired Companies or the Subsidiaries who have knowledge relating to any of the Acquired Companies or the Subsidiaries or their Business and (iiiii) any furnish to the officers, employees, agents, accountants, counsel, financing sources and representatives of the Purchaser such additional financial and operating data and other information relating solely (to the businessextent in the possession of the Sellers or any Acquired Company or Subsidiary) regarding the assets, properties, assets, books liabilities and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations goodwill of the Acquired Companies, the Subsidiaries and their Business (Cor legible copies thereof) coordinated through as the Company’s chief executive officer or designee thereof and Purchaser may from time to time reasonably request. For the avoidance of doubt, to the extent that Sellers determine (Dafter consultation with outside counsel) conducted at Buyer’s sole cost and expensethat disclosure of any such information is not consistent with recommended antitrust practices, and Sellers shall have will disclose that information under the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation terms of the Acquired CompaniesAntitrust Confidentiality Agreement. Notwithstanding anything to the contrary contained hereinin this Agreement, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall not be required to provide any such access or disclose any such information where to the Purchaser or Dycom or any such access or other person if such disclosure would, in the Sellers’ reasonable judgmentdiscretion (after consultation with outside counsel), (1i) jeopardize the any attorney-client or other legal privilege or other immunity (ii) contravene any applicable Laws. Nothing contained in this Agreement shall be construed to give to Dycom or protection from disclosure the Purchaser, directly or indirectly, any rights to control or direct the operations of Sellers or any Acquired Company or Subsidiary prior to the Closing Date. Prior to the Closing Date, the Sellers shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of the operations of the Acquired Companies and the Subsidiaries. Dycom and the Purchaser hereby agree that they are not authorized to and shall not (2)(xand shall not permit any of their Affiliates or any of their respective employees, officers, counsel, accountants, consultants, financing sources or other representatives or agents to) conflict with contact any Law competitor, supplier, distributor, or Order applicable to Sellers or customer of any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (Subsidiary with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party this Agreement or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything transactions contemplated hereby prior to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers Quanta (which consent shall not to be unreasonably withheld, conditioned or delayed)) and, (x) Buyer shall notif Quanta so elects, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer only in the presence of an Acquired Company regarding the business, operations, agent or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyrepresentative specified by Quanta.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From and after the Pre-Closing Perioddate hereof, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to Purchaser will (i) all afford the Purchaser or the Sellers (as applicable) and their respective authorized accountants, investment bankers, counsel and other representatives reasonable access (during regular business hours, in such a manner as to not interfere with the normal operation of the Acquired Business, upon reasonable advance notice) to all books, records and files (including Tax Returns of the Transferred Companies’ properties, assets, books ) of the Business to the extent related to the Purchased Assets (which shall be deemed to include the Concurrent HPS Assets and recordsthe Concurrent HPS Equity as if the Concurrent HPS Closing were occurring simultaneously with the Closing) and cause the Business’s independent public accountants to provide access to their work papers and such other information that relate to the Purchased Assets (which shall be deemed to include the Concurrent HPS Assets and the Concurrent HPS Equity as if the Concurrent HPS Closing were occurring simultaneously with the Closing) as the Purchaser or the Sellers (as applicable) may reasonably request (subject to entering into applicable confidentiality arrangements and hold harmless letters), (ii) all senior management other existing information concerning the business, properties and personnel of the Acquired Companies Business as the Purchaser or the Sellers (as applicable) may from time to time reasonably request and (iii) any other information relating solely to provide the business, properties, assets, books and records and personnel of Purchaser or the Acquired Companies Sellers (as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(aapplicable) shall be (A) conducted during normal business hours upon with reasonable advance notice to Sellers, (B) conducted assistance in such a manner as not to interfere connection with the normal operations preparation of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof financial statements and (D) conducted at Buyer’s sole cost with regulatory compliance and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (reporting with respect to the obligations placed therein on Purchased Assets (which shall be deemed to include the Concurrent HPS Assets and the Concurrent HPS Equity as if the Concurrent HPS Closing were occurring simultaneously with the Closing); provided that, notwithstanding the foregoing, neither the Seller Parent nor the Purchaser shall have any obligation to provide any disclosure to the extent restricted under applicable Acquired Company) Law or that is subject to legal privilege owned by the Seller Parent or the Purchaser (as applicable); provided, further, that in exercising access rights under this Section 8.1 the Purchaser and the Sellers shall be solely responsible for their respective costs and expenses of such investigation except to the extent covered pursuant to Section 8.2 or 10.2 or to the extent such underlying information or records are Purchased Assets (which an Acquired Company is party or shall be deemed to include the Concurrent HPS Assets and the Concurrent HPS Equity as if the Concurrent HPS Closing were occurring simultaneously with the Closing). All information obtained by the Purchaser and the Sellers and their representatives shall be subject to the Confidentiality Agreement, which shall remain in full force and effect with respect to the Purchaser and the Sellers until the expiration of this covenant (it being understood and agreed that, from and after the Closing, any Confidential Information included in the Purchased Assets shall be the property of the Acquired Companies’ assets Purchaser). All requests for access to the properties, books, records and files of the Seller Parent and the Purchaser shall be made to such representatives of the Seller Parent and the Purchaser as the Seller Parent and the Purchaser shall designate, respectively. Without limiting the foregoing, within seven (7) days following the Closing Date, Seller Parent shall deliver to Purchaser a complete electronic copy of the contents of the Dataroom as existing forty-eight (48) hours prior to the execution and delivery of this Agreement.
(b) The Purchaser and its representatives shall have the right, at reasonable times upon request, to inspect and to make copies of any books, records and files (including Contracts and Tax Returns) retained by a Seller relating to the Purchased Assets for purposes of performing or properties are boundenforcing obligations or rights under this Agreement. Such books, records and files shall be retained until at least the six (6) year anniversary of the Closing; provided, however, that, that in such instances, Sellers no case shall inform Buyer the destruction of any Tax Return take place before the later of (i) the expiration of the general nature statute of the information being withheld and, upon Buyer’s request limitations and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer any extensions thereof applicable to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, Tax Return and (yii) Buyer shall have no right to perform invasive or subsurface investigations of eight (8) years following the properties or facilities of any Acquired Companyfiling date for such Tax Return.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Asset and Share Purchase Agreement (Concurrent Computer Corp/De)
Access to Information. (a) During From the Pre-date hereof until the Closing Period(upon reasonable advance notice to Seller) at reasonable times during normal business hours, Sellers so that an uninterrupted and efficient operation and transfer of the Business or to Seller’s business or personnel may be accomplished, Seller shall, and shall cause the Acquired Companies its Subsidiaries and their senior management to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to the extent permitted by law: (i) all afford the officers, employees and authorized agents and representatives of Purchaser access to the properties and books and records (including Contracts) of the Acquired Companies’ properties, assets, books and records, Business; (ii) all senior management furnish to the officers, employees and authorized agents and representatives of Purchaser such additional financial and operating data and other information Related to the Acquired Companies Business as Purchaser may from time to time reasonably request; and (iii) provide Purchaser and its officers, employees and authorized agents and representatives with access to all of Seller’s and Seller’s applicable Subsidiaries’ personnel, officers, employees, agents and accountants; provided, however, that any other information relating solely regarding the Business or Acquired Assets heretofore or hereafter obtained from Seller or the Selling Subsidiaries shall be subject to the business, properties, assets, books and records and personnel terms of the Acquired Companies Confidentiality Agreement (as Buyer or any of its Representatives may reasonably request. All access defined in Section 5.4 below), and investigation pursuant to this Section 5.2(a) such information shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersheld in confidence by Purchaser, (B) conducted its Subsidiaries and their respective representatives in such a manner as not to interfere accordance with the normal operations terms of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a)Confidentiality Agreement. During the Pre-Closing Period, the Sellers Seller shall, and shall cause the Acquired Companies Selling Subsidiaries to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer assist Purchaser in its making such investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates counsel, accountants, engineers, consultants and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right other non-employee representatives to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companybe reasonably available to Purchaser for such purposes.
(b) Buyer will hold After the Closing Date, Seller and Purchaser shall, and shall respectively cause the Selling Subsidiaries and the Purchaser’s Subsidiaries to, provide to each other and to their respective officers, employees, counsel and other representatives, upon request, reasonable access for inspection and copying of all information and documents existing as of Back to Contents the Closing Date and relating to the Business, the Acquired Assets or the Assumed Liabilities, and shall make their respective personnel reasonably available for interviews, depositions and testimony in any legal matter concerning transactions contemplated by this Agreement, the operations or activities relating to the Business, 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 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 information obtained pursuant or assistance shall reimburse the other party for all reasonable and necessary out-of-pocket costs and expenses incurred by such party in providing such information and in rendering such assistance. The access to Section 5.2(ainformation and documents contemplated by this Section 5.3(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, records and other data unless such party shall first offer in confidence writing to surrender such books, records and other data to the other party and such other party shall not agree in accordance with writing to take possession thereof during the Confidentiality Agreementten-day period after such offer is made.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained hereinin this Section 3.4, Section 2.3, or in any other Section hereof, the Servicer, on reasonable prior written notice (of not less than five (5) Business Days), shall permit the Administrative Agent, the Indenture Trustee, the Advance Verification Agent, the MSR Valuation Agent, the Credit Manager or any agent or independent certified public accountants (which may or may not be the independent certified public accountants approved by the Administrative Agent to perform the agreed upon procedures pursuant to Section 3.3(g)(2)) selected by the Indenture Trustee, during the Pre-Closing PeriodServicer’s normal business hours, neither Sellers nor any Acquired Company shall be required and in a manner that does not unreasonably interfere with the Servicer’s conduct of its regular business, to provide access or disclose information where such access or disclosure wouldexamine all the books of account, in Sellers’ reasonable judgmentrecords, (1) jeopardize the attorney-client privilege or reports and other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation papers of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect Servicer relating to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; providedMortgage Loans, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇▇▇ ▇▇▇ Contract and the Participation Certificates, to make copies and extracts therefrom, and to discuss the Servicer’s sole cost affairs, finances and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything accounts relating to the contrary contained hereinMortgage Loans, during ▇▇▇▇▇▇ ▇▇▇ Contract and the Pre-Closing PeriodParticipation Certificates with the Servicer’s officers and employees, without all at such times and as often as reasonably may be requested; provided that any such Person seeking access to any information or documentation pursuant to this Section 3.4(a) has agreed with the prior written consent of Sellers (which consent shall not Servicer to be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, bound by any confidentiality provisions reasonably requested by the Servicer and shall cause its Affiliates upon request execute and its Representatives deliver a separate confidentiality agreement memorializing such provisions. Unless an Event of Default that has not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence been waived in accordance with the Confidentiality Agreementterms hereof shall have occurred, any out-of-pocket costs and expenses incident to the exercise by the Indenture Trustee or any Noteholder of any right under this Section 3.4 shall be borne by the requesting Noteholder(s). The parties hereto acknowledge that the Indenture Trustee shall not exercise any right pursuant to this Section 3.4 prior to any event set forth in the preceding sentence unless directed to do so by a group of Interested Noteholders, and the Indenture Trustee has been provided with indemnity satisfactory to it by such Interested Noteholders. The Indenture Trustee shall have no liability for action or inaction in accordance with the preceding sentence. In the event that such rights are exercised following the occurrence of an Event of Default that has not been waived in accordance with the terms hereof and is continuing, all reasonable and customary out-of-pocket costs and expenses actually incurred by the Indenture Trustee shall be borne by NSM. Prior to any such payment, NSM shall be provided with commercially reasonable documentation of such costs and expenses. Notwithstanding anything contained in this Section 3.4 to the contrary, in no event shall the books of account, records, reports and other papers of NSM or the Issuer relating to the Mortgage Loans and the Participation Certificates be examined by independent certified public accountants (which may or may not be the independent certified public accountants approved by the Administrative Agent to perform the agreed upon procedures pursuant to Section 3.3(g)(2)) at the direction of the Indenture Trustee or any Interested Noteholder pursuant to the exercise of any right under this Section 3.4 more than one time during any 12 month period at the expense of the Administrator, unless an Event of Default has occurred that has not been waived in accordance with the terms hereof during such twelve-month period, in which case more than one examination may be conducted during a twelve-month period, but such extra audits shall be at the sole expense of the Noteholder(s) requesting such audit(s).
Appears in 1 contract
Access to Information. (a) During From the Pre-date hereof until the Closing Periodand subject to applicable Laws and the terms of the Confidentiality Agreements, Sellers shall, and shall cause the Acquired Companies to, use commercially upon reasonable efforts to provide Buyer and its Representatives with reasonable access to prior notice:
(i) all of Venanpri will be entitled, through its officers, employees and representatives (including its legal advisors and accountants), to reasonable access to, the Acquired Companies’ properties, assetsbusinesses, operations, books and records, (ii) all senior management Contracts, and other documents and data related to the Ames Target Companies, and appropriate officers, employees and other representatives of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Ames Target Companies as Buyer or any of its Representatives may it reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expenserequests, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause Griffon HoldCo will instruct its employees, counsel, financial advisors, auditors and other authorized Representatives advisors to cooperate with Buyer Venanpri in its investigation of the Acquired Ames Target Companies; provided, however, that such investigation will not unreasonably interfere with any of the businesses or operations of the Ames Target Companies; and
(ii) Griffon HoldCo will be entitled, through its officers, employees and representatives (including its legal advisors and accountants), to reasonable access to, the properties, businesses, operations, books and records, Contracts, and other documents and data related to the Venanpri Target Companies and such examination of the books and records of the Venanpri Target Companies, and appropriate officers, employees and other representatives of the Venanpri Target Companies as it reasonably requests, and Venanpri will instruct its advisors to cooperate with Griffon HoldCo in its investigation of the Venanpri Target Companies; provided, however, that such investigation will not unreasonably interfere with any of the businesses or operations of the Venanpri Target Companies.
(b) Access pursuant to Section 7.1(a) shall be permitted only (i) in the case of access to the properties, businesses, operation, or officers, employees and other representatives, in the presence of the Party providing such access, and (ii) to the extent reasonably required by the Party requesting such access for the purposes of planning the post-Closing integration of the Ames Target Companies and the Venanpri Target Companies. Any such access and examination permitted hereunder will be conducted at the sole expense of the Party requesting such access, during regular business hours and under reasonable circumstances and will be subject to restrictions under applicable Law. The Party requesting such access and its representatives will use their reasonable best efforts to minimize any disruption to the business. Any disclosure during such investigation to Venanpri or Griffon HoldCo (as applicable), or their respective officers, employees and representatives will not constitute any enlargement of any representation or warranty or any additional representation or warranty of any Seller beyond those specifically set forth in this Agreement or any of the Ancillary Agreements (unless this Agreement or the applicable Ancillary Agreement(s) are amended in accordance with their terms to include such additional representation or warranty). Notwithstanding anything herein to the contrary, no such access or examination will be permitted to the extent that Venanpri or Griffon HoldCo (as applicable) determines, in its reasonable, good faith judgment (after consultation with counsel), that doing so would violate applicable Law or jeopardize any applicable legal privilege (including attorney-client privilege); provided, however, that each of Griffon HoldCo and Venanpri will use its reasonable best efforts to make alternative arrangements to make any such information available in such a manner so as to not waive any applicable legal privilege.
(c) Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect prior to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing PeriodClosing, without the prior written consent of Sellers (which consent shall not be unreasonably withheldeach applicable Seller, conditioned or delayed)neither Seller, (x) Buyer shall notnor Buyer, and shall cause its Affiliates and its Representatives not toMidCo, contact any vendor, supplier or customer of an Acquired Company regarding the business, operationsFinCo, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall ForCo will have no any right to perform do any invasive environmental sampling or subsurface investigations of the properties or facilities testing of any Acquired real property owned, occupied or used by any Venanpri Target Company or Ames Target Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Pre-date of this Agreement until the earlier of the Closing Periodor the termination of this Agreement in accordance with its terms, Sellers shall, and shall cause each of the Acquired Companies to, use commercially reasonable efforts to provide Buyer give Buyers and its Representatives with their professional advisors reasonable access during normal business hours and upon reasonable prior written notice to (i) all of the Acquired Companies’ properties, assets, books contracts and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assetsagreements, books and records and personnel of the Acquired Companies and shall promptly deliver or make available to Buyers information concerning the business, properties and assets of the Companies as Buyer Buyers’ Representative may from time to time reasonably request subject to applicable Laws, including Competition Laws and federal or state securities Laws. All information related to such access shall be treated as confidential information pursuant to the terms of the Confidentiality Agreement. From the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Buyers hereby agree that they are not authorized to and shall not (and shall not permit any of their employees, agents, representatives or Affiliates to) contact any employee, customer, supplier, distributor or other material business relation of either Company regarding its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with or the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts transactions contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, Agreement without the prior written (including by e-mail) consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanySellers’ Representative.
(b) Buyer will hold Following the Closing, Buyers (including, for the purpose of this Section 7.2(b), the Companies after the Closing) shall provide Sellers and their professional advisors with reasonable access to the books and records of the Companies if reasonably required by a Seller or its Affiliates in connection with (i) any information obtained pursuant litigation, investigation, tax audit, discovery or similar proceeding, (ii) the preparation of Tax Returns, or (iii) the preparation of Sellers’ Parent’s financial statements or of filings required to Section 5.2(a) be made by Sellers’ Parent to satisfy its obligations under applicable Law with respect to the securities exchange on which its securities are traded, in confidence each case, in accordance with Sellers’ Parent’s internal reporting timelines. If Sellers’ Parent requests the Confidentiality Agreementassistance (including testimony) of employees of either Company in connection with any litigation, investigation, Tax audit, discovery, or similar proceeding or claim, or with the preparation of Sellers’ Parent’s financial statements or securities filings as contemplated by this Section 7.2(b), the applicable Buyer shall make, or cause the applicable Company to make, such employees available for a reasonable period of time during normal business hours and upon reasonable prior written notice.
Appears in 1 contract
Access to Information. (a) During the Pre-period prior to the Closing PeriodDate, Sellers Dublin shall, and shall cause the Acquired Companies its Subsidiaries to, use commercially reasonable efforts to provide afford Buyer and its Representatives with Representatives, during normal business hours, upon reasonable advance notice and solely to the extent permitted under applicable Law, reasonable access to (i) all the Business Real Property and Information that constitutes an Acquired Asset of the Acquired Companies’ propertiesDublin and its Subsidiaries, assets, books and records, (ii) all senior management of such other Information as may be reasonably requested relating to the Business, Transferred Subsidiaries, Acquired Companies Assets, Assumed Liabilities and the Continuing Employees (iii) any other information relating but solely to the businessextent (A) related to the Business, properties(B) necessary for Buyer to reasonably prepare to integrate the Business after the Closing and the Transferred Subsidiaries into its own business following the Closing Date and (C) material to the Business taken as a whole (the “Specified Business Information”)); provided that prior to the Closing Date, assets, books and records and personnel none of the Acquired Companies as Buyer or any of its Affiliates shall conduct any Phase II Environmental Site Assessment or conduct any invasive testing or any sampling of air, soil, sediment, surface water, ground water or other environmental media or building material at, on, under or within the Business Real Property or any facility on the Business Real Property without the prior written consent of Dublin, which may be granted or denied in Dublin’s sole discretion; provided, further, that Dublin and its Affiliates shall not be required to provide Buyer or its Representatives may reasonably request. All access and investigation with (x) any Information related to the Acquisition or Dublin’s or its 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 Acquisition or financial information required to be delivered pursuant to this Section 5.2(aSection 5.6(c), Section 5.14 or Section 5.26, (y) any Information or access to Business Real Property requested in connection with any actual or purported due diligence investigation after the date hereof or (z) any financial operation Information other than as required pursuant to Section 5.6(c), Section 5.14 or Section 5.26; provided, further, that, neither Dublin nor any of its Affiliates shall be required to disclose any such Information or provide access to any Business Real Property: (A) conducted during normal business hours if doing so would violate any written obligation of confidentiality to which it or any of its Affiliates is subject or, upon reasonable advance notice the advice of counsel, would jeopardize attorney-client privilege or contravene any Laws or violate any Contract to Sellerswhich Dublin or any of its Affiliates (including the Transferred Subsidiaries) is party or by which any of the assets or properties of Dublin or any of its Affiliates (including the Transferred Subsidiaries) are bound, (B) if Dublin or any of its Subsidiaries, on the one hand, and Buyer or any of its Subsidiaries, on the other hand, are adverse parties in a Proceeding and such information is reasonably pertinent thereto, (C) if such Party reasonably determines in good faith that such information is competitively sensitive or (D) to the extent related to the Excluded Dublin Businesses, the Excluded Assets or the Retained Liabilities; provided that, in the case of clause (A) above, Dublin shall use its commercially reasonable efforts to obtain any required consents or take such other action (such as the entry into a joint defense agreement or other arrangement to avoid loss of attorney client privilege) to permit such access or disclosure; provided, further, that, in the case of clause (C) above, Dublin shall use its commercially reasonable efforts to disclose such information to Buyer through a “clean team” or other arrangement designed to protect the competitive sensitivity of such information. Buyer agrees that any investigation undertaken pursuant to the access granted under this Section 5.6(a) shall be conducted in such a manner as not to unreasonably interfere with the normal operations operation of the Acquired Companies, (C) coordinated through Business or the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expenseExcluded Dublin Businesses, and Sellers in no event shall have the right Dublin or its Affiliates be required to have one devote (or more of cause their Representatives present at all times during to devote) more than 400 person hours in the aggregate in any visitsmonth in meetings with Buyer or its Representatives or gathering Information for Buyer or its Representatives, examinations, discussions or contacts contemplated by relating to requests under this Section 5.2(aSection 5.6(a). For purposes of illustration, when calculating person hours for purposes of this Section 5.6(a), a one (1) hour meeting attended by Representatives of Buyer and three (3) employees of Dublin would give rise to three (3) person hours. Any request for Information pursuant to this Section 5.6(a) shall be submitted pursuant to the instructions set forth in Section 5.6(a) of the Dublin Disclosure Schedule.
(b) During the Pre-period prior to the Closing PeriodDate, the Sellers Buyer shall, and shall cause the Acquired Companies its Subsidiaries to, use commercially reasonable efforts afford Dublin and its Representatives, monthly financial reports of Holdings and its Subsidiaries in accordance with Section 5.6(c). In addition, Buyer shall consider in good faith requires from Dublin and its Representatives for additional Information as may be reasonably requested relating to cause the business of Holdings, Buyer or their respective Subsidiaries (but solely to the extent (A) related to the business of Holdings, Buyer or their respective Subsidiaries and (B) material to the business of Holdings, Buyer or their respective Subsidiaries taken as a whole (such Information, the “Specified Buyer Information”)), it being understood that in no event shall Buyer be required to provide Dublin, its employeesAffiliates or their respective Representatives with any information that Equity Seller Reinvestment Holdco would not be entitled to receive pursuant to the terms of the Equity Term Sheet; provided that Buyer and its Affiliates shall not be required to provide Dublin or its Representatives with any Information related to the Acquisition or Buyer’s or its Representatives’ evaluation thereof, counselincluding projections, financial advisorsor other information related thereto other than projections, auditors and financial or other authorized Representatives to cooperate with Buyer information prepared in its investigation the ordinary course of the Acquired Companies. Notwithstanding anything to Business without being primarily prepared for the contrary contained hereinAcquisition; provided, during the Pre-Closing Periodfurther, that, neither Sellers Buyer nor any Acquired Company of its Affiliates shall be required to provide access disclose any such Information: (A) if doing so would violate any written obligation of confidentiality to which it or disclose information where such access or disclosure wouldany of its Affiliates is subject or, in Sellers’ reasonable judgmentupon the advice of counsel, (1) would jeopardize the attorney-client privilege or other immunity contravene any Laws or protection from disclosure of Sellers violate any Contract to which Buyer or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company its Affiliates is party or by which any of the Acquired Companies’ assets or properties of Buyer or any of its Affiliates are bound, (B) if Buyer or any of its Subsidiaries, on the one hand, and Dublin or any of its Subsidiaries, on the other hand, are adverse parties in a Proceeding and such information is reasonably pertinent thereto, or (C) if such Party reasonably determines in good faith that such information is competitively sensitive; provided that, in the case of clause (A) above, Buyer shall use its commercially reasonable efforts to obtain any required consents or take such other action (such as the entry into a joint defense agreement or other arrangement to avoid loss of attorney client privilege) to permit such access or disclosure; provided, howeverfurther, that, in the case of clause (C) above, Buyer shall use its commercially reasonable efforts to disclose such instancesinformation to Dublin through a “clean team” or other arrangement designed to protect the competitive sensitivity of such information.
(c) During the period starting on the date hereof until the date immediately preceding the Closing Date, Sellers as promptly as reasonably practicable after the end of each month (beginning with the end of August 2025), (i) Dublin shall inform use commercially reasonable efforts to deliver to Buyer copies of monthly reports reflecting management reported figures with respect to the items, and in the form, set forth Section 5.6(c) of the general nature Dublin Disclosure Schedule, and (ii) Buyer shall use commercially reasonable efforts to deliver to Dublin copies of monthly reports reflecting management reported figures with respect to the items, and in the form, set forth Section 5.6(c) of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1Disclosure Schedule.
(d) or (2). Notwithstanding anything in this Agreement to the contrary contained hereincontrary, during the Pre-period prior to the Closing PeriodDate or the earlier termination of this Agreement, (i) without the prior written consent of Sellers Dublin (email being sufficient) (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier supplier, landlord, customer, employee or customer contractual partner of an Acquired Company the Business, Dublin, any of its Affiliates (including the Transferred Subsidiaries) or any of their Representatives regarding the business, operations, operations or prospects of the Acquired Companies Business or the Transferred Subsidiaries or this Agreement Agreement, the Acquisition Documents or the transactions contemplated herebyhereby or thereby and (ii) without the prior written consent of Buyer (email being sufficient) (which consent shall not be unreasonably withheld, conditioned or delayed), Dublin shall not, and (y) Buyer shall have no right to perform invasive cause its Affiliates and its Representatives not to, contact any vendor, supplier, landlord, customer, employee or subsurface investigations contractual partner of the properties business of Holdings, Buyer and their respective Affiliates or facilities any of any Acquired Companytheir Representatives regarding the business, operations or prospects of the business of Holdings, Buyer and their respective Subsidiaries or this Agreement, the Acquisition Documents or the transactions contemplated hereby or thereby.
(be) For a period of four (4) years after the Closing, Buyer will hold any information obtained pursuant shall, and shall cause its Affiliates to, afford Dublin, its Affiliates and their respective Representatives, during normal business hours, upon reasonable notice, reasonable access and duplicating rights (with copying costs to Section 5.2(abe borne by Dublin) to Information solely to the extent related to (i) the Excluded Dublin Businesses for the period prior to the Closing and not otherwise in confidence the possession of Dublin, its Affiliates and their respective Representatives or, solely for the purposes described in accordance with the Confidentiality penultimate sentence of this Section 5.6(e) or to the extent reasonably necessary for the Parties to complete the separation of assets as contemplated by this Agreement., to the extent related to the Business for the period prior to the Closing (or for such other reasonable purposes as may be agreed by the Parties) or (ii)
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely Subject to the business, properties, assets, books and records and personnel of restrictions contained in the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing PeriodConfidentiality Agreement, the Sellers shalland TPGC will give Buyer, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives representatives reasonable access during normal business hours at Buyer's expense to the offices, properties, books and records of TPGC and each of the Subsidiaries and will instruct the employees, counsel and financial advisors of the Sellers to cooperate with Buyer in its investigation of TPGC and the Acquired CompaniesSubsidiaries; provided, however, that any such investigation shall be conducted on commercially reasonable prior notice submitted to ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President/Controller of TPGC, and in such manner as not to interfere unreasonably with the conduct of the business of TPGC or the Subsidiaries. The Sellers and TPGC agree to reasonably cooperate with Buyer and its parent, MJD Communications, Inc. ("MJD"), and give MJD and its auditors and representatives access to TPGC's representatives, employees and auditors as Buyer may reasonably request pursuant to reasonable prior notice to TPGC so that MJD may obtain the necessary financial data to permit MJD to comply with its reporting obligations under the federal securities laws; PROVIDED, HOWEVER, that such requests and access shall not interfere unreasonably with the conduct of the business of TPGC or the Subsidiaries. All costs, expenses and fees incurred in connection with compliance by any party with the obligations set forth in the preceding sentence shall be borne by Buyer. Except as specifically provided in Sections 3.9 and 3.10 with respect to the financial statements delivered in accordance with Section 3.9, the Sellers and TPGC make no representations or warranties with respect to any financial data obtained by Buyer and MJD pursuant to this Section 5.2, and Buyer hereby indemnifies and holds harmless TPGC and the Sellers and any Person that controls either of them within the meaning of Section 15 of the Securities Act of 1933, as amended, and Section 20 of the Securities Exchange Act of 1934, as amended, from and against any and all liabilities, losses, damages, costs and expenses arising from or in connection with the inclusion of any such financial data in any report or other filing filed or made by Buyer or MJD under the federal securities laws (collectively, "Securities Losses"). Notwithstanding the foregoing, nothing contained in this Section 5.2 shall limit or restrict the Sellers' obligation to indemnify and hold harmless Buyer pursuant to Article 7 hereof for the inaccuracy of the representations and breach of the warranties contained in Sections 3.9 and 3.10; provided, however, that notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) obligated to indemnify and hold harmless Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact pursuant to Section 7.1 for any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanySecurities Losses.
(b) Buyer will hold any information obtained pursuant In addition, the Sellers and TPGC agree to Section 5.2(aprovide Buyer, during the period from the date hereof until the Closing Date, with copies of the monthly financial statements and other financial data prepared by TPGC in the ordinary course of business within thirty (30) in confidence in accordance with days after the Confidentiality Agreementend of each fiscal month during such period.
Appears in 1 contract
Access to Information. (a) During Between the Pre-date of this Agreement and the Closing PeriodDate, Sellers shall, the Company will and shall will cause the Acquired Companies Subsidiary to, use commercially during ordinary business hours and upon reasonable efforts to provide notice, (i) give Buyer and its Representatives with accountants, counsel, environmental consultants, financial advisors and other authorized representatives (the "Buyer Representatives") reasonable access to (i) all books, records, plants, offices and other facilities and properties of the Acquired Companies’ properties, assets, books and recordsCompany to which Buyer is permitted access by law, (ii) all senior management of the Acquired Companies and permit Buyer to make such reasonable inspections thereof as Buyer may reasonably request, (iii) any cause its officers and advisors to furnish Buyer with such financial and operating data and other information relating solely with respect to the business, properties, assets, books business and records and personnel properties of the Acquired Companies Subsidiary and the Company as Buyer or any of its Representatives may from time to time reasonably request. All access , (iv) cause its officers and investigation pursuant advisors to this Section 5.2(a) shall be furnish Buyer a copy of each report, schedule or other document filed with or received by them from the SEC with respect to the Subsidiary and the Company; provided, however, that (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the normal operations operation of the Acquired Companiesbusiness of the Subsidiary and the Company, (CB) coordinated through the Company’s chief executive officer or designee thereof Subsidiary and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall not be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize take any action which would constitute a waiver of the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated herebyprivilege, and (yC) the Subsidiary and the Company need not supply Buyer shall have no right with any information which the Subsidiary or the Company, as the case may be, is under a legal obligation not to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companysupply.
(b) All information furnished to or obtained by Buyer will hold any information obtained and the Buyer Representatives pursuant to Section 5.2(a) in confidence in accordance with this Section 5.3 shall be subject to the provisions of the Confidentiality Agreement, dated May 10, 1997, between the Company and Buyer (the "Confidentiality Agreement") and shall be treated as "Information" (as defined in the Confidentiality Agreement). In the event that this Agreement shall be terminated without the Closing having occurred, Buyer agrees that for a period of one year from the date of this Agreement it will not use "Information" (as defined in the Confidentiality Agreement) to compete with the Company's franchisees to obtain lease renewals in the malls where the Company's franchised stores are presently located as of the date of this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Fields MRS Original Cookies Inc)
Access to Information. (a) During the Pre-Closing Period1. Peoples Bank Corporation agrees to permit Fifth Third, Sellers shallits officers, employees, accountants, agents and attorneys, and shall cause the Acquired Companies toFifth Third agrees to permit Peoples Bank Corporation, use commercially reasonable efforts its officers, employees, accountants, agents and attorneys, to provide Buyer and its Representatives with have reasonable access during business hours to (i) all their respective books, records and properties, and those of its respective subsidiaries as well, for the purpose of making a detailed examination, or updating and amplifying prior examinations, of the Acquired Companies’ propertiesfinancial condition, assets, books liabilities, legal compliance, affairs and records, (ii) all senior management the conduct of the Acquired Companies business of Peoples Bank Corporation, the Bank Subsidiary and (iii) any other information relating solely the PBC Subsidiaries or Fifth Third and its subsidiaries, as the case may be, prior to the businessEffective Time, properties, assets, books and records and personnel also to permit the monitoring of the Acquired Companies as Buyer or any foregoing on an ongoing basis (such rights of its Representatives may reasonably request. All access examination and investigation pursuant monitoring to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything subject to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, confidentiality obligations set forth in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundSection VII.D. hereof); provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in no investigation by any of the outcomes described parties or their respective representatives shall affect the representations and warranties of the other set forth herein.
2. Fifth Third will not disclose to others, shall not use in respect of its (or any of its subsidiaries) business operations, and will hold in confidence any non-public, confidential information disclosed to it by Peoples Bank Corporation concerning Peoples Bank Corporation, the foregoing clauses (1Bank Subsidiary or any of the PBC Subsidiaries. Peoples Bank Corporation will not disclose to others, shall not use in respect of its (or any of its subsidiaries) business operations, and will hold in confidence any non-public, confidential information disclosed to it concerning Fifth Third or (2)any of its affiliates. Notwithstanding anything In the event the Merger is not completed, all non-public financial statements, documents and materials, and all copies thereof, shall be returned to Peoples Bank Corporation or Fifth Third, as the contrary contained hereincase may be, during the Pre-Closing Period, without the prior written consent of Sellers (which consent and shall not be unreasonably withheldused by Fifth Third or Peoples Bank Corporation, conditioned as the case may be, in any way detrimental to Peoples Bank Corporation or delayed)Fifth Third.
3. As soon as they are available, (x) Buyer shall notPeoples Bank Corporation will provide to Fifth Third Peoples Bank Corporation's unaudited, consolidated balance sheets, statements of income, changes in stockholders' equity and cash flows as of and at June 30, 1999, and for the six months then ended, and shall cause its Affiliates continue to furnish such financial information for subsequent monthly and its Representatives not toquarterly periods to Fifth Third, contact any vendorand audited, supplier consolidated financial statements as at December 31, 1999 and for the year then ended, as soon as practicable, in each case, until the Closing Date. Such audited and unaudited consolidated financial statements of Peoples Bank Corporation will fairly present, as applicable, the consolidated financial condition, results of operations and cash flows of Peoples Bank Corporation as of the date thereof, and for the years or customer periods covered thereby, in conformity with GAAP, consistently applied (except as stated therein and except for the omission of an Acquired Company regarding notes to unaudited statements and except for normal (in nature and amount) year-end adjustments to interim results). Peoples Bank Corporation timely shall furnish Fifth Third with copies of all reports filed by Peoples Bank Corporation with the businessSEC subsequent to the date of this Agreement and until the Closing Date.
4. As soon as they are available, Fifth Third will provide to Peoples Bank Corporation Fifth Third's unaudited, consolidated balance sheets, statements of operations, or prospects statements of stockholders' equity and cash flows as of and at June 30, 1999, and for the six months then ended, and shall continue to furnish such financial information for subsequent monthly and quarterly periods to Peoples Bank Corporation, and audited, consolidated financial statements as at December 31, 1999 and for the year then ended, as soon as practicable, in each case, until the Closing Date. Such audited and unaudited consolidated financial statements of Fifth Third fairly will fairly present, as applicable, the consolidated financial condition, results of operations and cash flows of Fifth Third as of the Acquired Companies date thereof, and for the years or periods covered thereby, in conformity with GAAP, consistently applied (except as stated therein and except for the omission of notes to unaudited statements and except for normal (in nature and amount) year-end adjustments to interim results). Fifth Third timely shall furnish Peoples Bank Corporation with copies of all reports filed by Fifth Third with the SEC subsequent to the date of this Agreement or and until the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyClosing Date.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Affiliation Agreement (Peoples Bank Corp of Indianapolis)
Access to Information. (a) During Subject to any limitations on disclosures to which the Pre-Closing PeriodParent and the Acquiror agreed in the Confidentiality Agreement, Sellers the Parent shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely prior to the businessClosing Date, propertiescause each member of each Company Group (or, assets, books and records and personnel in the case of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such Company Group member that is a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the PreNon-Closing Period, the Sellers shall, and shall cause the Acquired Companies toControlled Entity, use commercially reasonable efforts to cause such Non-Controlled Entity)
(i) to afford to the Acquiror and its Representatives access, at reasonable times upon reasonable prior notice, to the officers, employees, counselagents, financial advisorsproperties, auditors offices and other authorized Representatives to cooperate with Buyer in its investigation facilities of the Acquired Companies. Notwithstanding anything Company Group member and to its Books and Records and (ii) to furnish promptly to the contrary contained hereinAcquiror and its Representatives such information concerning the properties, during contracts, records and personnel (including financial, operating and other data and information) related to the Pre-Closing PeriodBusinesses as may be reasonably requested, neither Sellers nor any Acquired Company shall be required from time to provide access time, by or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation on behalf of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundAcquiror; provided, however, that, in such instances, Sellers shall inform Buyer that Acquiror's Representatives (i) comply with the provisions of the general nature Confidentiality Agreement, (ii) comply with all applicable safety and other rules of conduct of such offices and facilities and (iii) do HALLIBURTON COMPANY AGREEMENT AND PLAN OF RECAPITALIZATION 40 not unreasonably interfere with the operation of such offices or facilities or the personnel involved. In this regard, the Acquiror acknowledges that none of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole Non-Controlled Entities is under the direct or in part, in a manner that would not result in any indirect control of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyParent.
(b) Buyer will hold Subject to any information obtained pursuant limitations on disclosures to Section 5.2(a) which the Parent and the Acquiror agreed in confidence in accordance with the Confidentiality Agreement, the Parent shall, at any time following the issuance of a press release or similar disclosure announcing the execution of this Agreement and prior to the Closing Date, cause each member of each Company Group to afford to the Acquiror and its Representatives access, at reasonable times and upon reasonable prior notice, to the customers and suppliers of such Company Group member.
(c) All information provided to the Acquiror and the Acquiror's Representatives pursuant to the Parent's Disclosure Letter and otherwise pursuant to subsection (a) of this Section shall be deemed to be "Evaluation Material" as that term is defined in the Confidentiality Agreement but subject to the exclusions and exceptions described therein.
Appears in 1 contract
Sources: Agreement and Plan of Recapitalization (Halliburton Co)
Access to Information. (a) During Between the Pre-date of this Agreement and the earlier of the Closing PeriodDate or the date of the termination of this Agreement, Sellers shall, and BRITCO shall cause the Acquired Companies to, use commercially reasonable efforts provide to provide Buyer MCSC and its Representatives with reasonable representatives full access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessits premises, properties, assetsequipment, books and records as are related to the Business and shall make its directors, officers, employees and agents available to confer with MCSC and its representatives; and during such period, BRITCO shall: (i) disclose and make available to MCSC and its representatives all documents and records relating to the assets, properties, operations, obligations and liabilities of BRITCO, including but not limited to, all books of account (including the general ledger), tax records and returns, minute books of directors', committees', and stockholders' meetings, organizational documents, material contracts, customer list and agreements, filings with and communications from any Governmental Authority, litigation files, accountants' work papers, plans or records relating to employees and any other business activities of BRITCO as MCSC or its representatives may require; and (ii) promptly furnish to MCSC all other information concerning BRITCO's Business, properties and personnel of the Acquired Companies as Buyer or any of its Representatives MCSC may reasonably request. All access and investigation pursuant to During this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersperiod, (B) conducted MCSC may perform any review, analysis or testing that it, in such a manner as its sole discretion, deems appropriate. MCSC will use its best efforts not to unduly interfere with the normal business operations of the Acquired CompaniesBRITCO during such review. Throughout this period, (C) coordinated through the Company’s chief executive officer or designee thereof BRITCO will cause Mrs. and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a)▇▇. During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost ▇▇▇▇ and expenseone or more other designated representatives to confer with MCSC's representatives on a regular and frequent basis and to report the general status of BRITCO's ongoing condition and operations. In addition, reasonably cooperate BRITCO will permit MCSC to communicate with Buyer to provide such informationits agents, customers and creditors. BRITCO will immediately notify MCSC of any material change in whole the ordinary course of its business or in partthe operations of its properties or of any governmental complaints, in a manner investigations or hearings (or communications indicating that would not result in any of the outcomes described in the foregoing clauses (1same may be contemplated) or (2). Notwithstanding anything to the contrary contained hereininstitution, during continuation or the Pre-Closing Period, without the prior written consent threat of Sellers (which consent shall not be unreasonably withheld, conditioned litigation involving BRITCO or delayed), (x) Buyer shall not, and shall cause its Affiliates or affiliated persons and its Representatives not to, contact any vendor, supplier or customer will keep MCSC fully informed of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companysuch events.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Miami Computer Supply Corp)
Access to Information. (a) During From and after the PreClosing Date, St. ▇▇▇▇ shall afford to the Company and its Post-Closing PeriodSubsidiaries and their respective authorized accountants, Sellers shallcounsel and other designated representatives (collectively, "Representatives") reasonable, and shall cause the Acquired Companies toreasonably prompt, use access (including using commercially reasonable efforts to provide Buyer and its Representatives with reasonable give access to Persons possessing information) during normal business hours to all data and information that is specifically described in writing (collectively, "Information") within the possession of St. ▇▇▇▇ or any Post-Closing Subsidiary of St. ▇▇▇▇ relating to the Company or any Post-Closing Subsidiary of the Company, insofar as such Information is reasonably required by the Company or such Post-Closing Subsidiary including in connection with its preparation of regulatory reports and filings, provided, that St. ▇▇▇▇ shall not be obliged to provide information concerning contracts with an inception date of prior to January 1, 2002 other than: (i) all copies of the Acquired Companies’ propertiesunderwriting files for contracts that were underwritten by St. ▇▇▇▇ Re in the 1997, assets1998, books 1999, 2000 and records, 2001 underwriting years and that are within the Transferred Lines or the Excluded Classes as set forth in Schedule 11.01; (ii) all senior management of aggregate loss data for contracts that are within the Acquired Companies Transferred Lines or the Excluded Classes upon the Company's representation that such information is required in connection with its business; and (iii) any other St. ▇▇▇▇ will also provide access to the underwriting files (but shall not provide copies thereof) for contracts written by St. ▇▇▇▇ Re within the Transferred Lines or the Excluded Classes in underwriting years prior to 1997 upon the Company's representation that it requires access to such information in connection with its business. For greater certainty, St. ▇▇▇▇ shall provide monthly aggregate claims information relating solely to any individual contract having an inception date that is prior to January 1, 2002; however, nothing herein shall require that St. ▇▇▇▇ share or provide any information concerning individual claims. Similarly, from and after the businessClosing Date, propertiesthe Company shall afford to St. ▇▇▇▇, assets, books any Post-Closing Subsidiary of St. ▇▇▇▇ and records and personnel of the Acquired Companies as Buyer or any of its their respective Representatives may reasonably request. All reasonable access and investigation pursuant (including using commercially reasonable efforts to this Section 5.2(agive access to Persons possessing information) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with Information within the normal operations Company's or any Post-Closing Subsidiary of the Acquired Companies, (C) coordinated through the Company’s chief executive officer 's possession that is specifically described in writing relating to St. ▇▇▇▇ or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the PrePost-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation Subsidiary of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at BSt. ▇▇▇▇’s sole cost and expense, insofar as such Information is reasonably cooperate with Buyer to provide such information, in whole required by St. ▇▇▇▇ or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the PrePost-Closing PeriodSubsidiary of St. ▇▇▇▇. Information may be requested under this Article XI for, without limitation, audit, accounting, claims, litigation (other than any claims or litigation between the prior written consent parties hereto or their Subsidiaries) and tax purposes, as well as for purposes of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, fulfilling disclosure and shall cause its Affiliates reporting obligations and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or for performing this Agreement or and the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Formation and Separation Agreement (Platinum Underwriters Holdings LTD)
Access to Information. (a) During the Pre-period from the date of this Agreement to the earlier of the termination of this Agreement in accordance with Article 11 or the Closing PeriodDate, Sellers shallupon reasonable prior notice, Seller shall and shall cause the Acquired Companies to, use commercially reasonable efforts Seller Subsidiaries to provide afford Buyer and its authorized Representatives with reasonable access during normal business hours to (i) all the personnel engaged in the conduct of the Acquired Companies’ properties, assets, books Business and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely books, records or Contracts to the businessextent relating exclusively to the Business (other than the Excluded Assets); provided, propertieshowever, assets, books and records and personnel that any such access or furnishing of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) information shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersat Buyer’s expense without reimbursement from Seller or its Affiliates, (B) conducted under the supervision of Seller’s personnel and in such a manner as not unreasonably to interfere with the normal operations of Seller or any Seller Subsidiary. For the Acquired Companiesavoidance of doubt, any information furnished or made available by Seller to Buyer pursuant to this Section 5.4(a) shall be treated as Seller Proprietary Information (Cas defined in the letter agreement, dated as of August 30, 2018, by and between Seller and Buyer (the “Confidentiality Agreement”)) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause be treated in accordance with the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired CompaniesConfidentiality Agreement. Notwithstanding anything to the contrary contained hereinin this Agreement, during the Pre-Closing Period, neither Sellers nor Seller and any Acquired Company Seller Subsidiary shall not be required to provide access disclose any information to Buyer or disclose information where its Representatives if such access or disclosure would, in Sellers’ reasonable judgmentSeller’s sole discretion, (1A) jeopardize the any attorney-client privilege or other immunity legal privilege, (B) contravene any applicable Laws (including applicable privacy or data protection from disclosure of Sellers Laws), fiduciary duty or any Acquired Company binding agreement entered into prior to the date hereof, or (2)(xC) conflict with relate solely to any Law income Tax Return or Order applicable to Sellers related work papers filed or any Acquired Company prepared by or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) Seller or solely to which an Acquired Company is party any Tax Return or related work papers prepared by which or with respect to any predecessor entity of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanySeller.
(b) Buyer will hold any All information provided or obtained pursuant to Section 5.2(aSection 5.4(a) in confidence shall be held by Buyer in accordance with and subject to the terms of the Confidentiality Agreement, until the Closing Date except such information as was provided to Seller subject to an obligation of confidentiality which shall remain confidential per the terms of each respective agreement.
(c) Any information provided pursuant to this Section 5.4 shall not affect or otherwise diminish or obviate in any respect, or affect Buyer’s right to rely upon, any of the representations, warranties or covenants contained in this Agreement or the indemnification rights contained in this Agreement.
Appears in 1 contract
Access to Information. (a) During Subject to applicable law, the Pre-Closing Period, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer Company and its Representatives with reasonable access subsidiaries shall afford to Parent and Subsidiary and their respective accountants, counsel, financial advisors and other representatives (ithe "Parent Representatives") all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies Parent and (iii) any other information relating solely its subsidiaries shall afford to the businessCompany and its accountants, propertiescounsel, assets, books financial advisors and records and personnel of other representatives (the Acquired Companies as Buyer or any of its Representatives may reasonably request. All "Company Representatives") full access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon with reasonable advance notice throughout the period prior to Sellersthe Effective Time to all of their respective properties, books, contracts, commitments and records (Bincluding, but not limited to, Tax Returns) conducted in and, during such period, shall furnish promptly to one another (i) a manner as not copy of each report, schedule and other document filed or received by any of them pursuant to interfere the requirements of federal or state securities laws or filed by any of them with the normal operations of SEC in connection with the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts transactions contemplated by this Section 5.2(a). During the Pre-Closing PeriodAgreement and (ii) such other information concerning their respective businesses, the Sellers shall, properties and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access personnel as Parent or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company Subsidiary or the assetsCompany, or operation of as the businesscase may be, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundshall reasonably request; provided, however, thatthat no investigation pursuant to this Section 7.1 shall 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 instancesstrict confidence all nonpublic documents and information furnished to Parent and Subsidiary or to the Company, Sellers shall inform Buyer of as the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such informationcase may be, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or connection with the transactions contemplated herebyby 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 and Parent Stockholders' Approval, the Company Required Statutory Approvals and the Company Stockholders' Approval and (yii) Buyer shall have no right each of Parent, Subsidiary and the Company may disclose any information that it is required by law or judicial or administrative order to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companydisclose.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence In the event that this Agreement is terminated in accordance with its terms, each party shall promptly redeliver to the Confidentiality Agreementother all nonpublic written material provided pursuant to this Section 7.1 and shall not retain any copies, extracts or other reproductions in whole or in part of such written material. In such event, all documents, memoranda, notes and other writings prepared by Parent or the Company based on the information in such material shall be destroyed (and 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), and such destruction (and reasonable best efforts) shall be certified in writing by an authorized officer supervising such destruction.
Appears in 1 contract
Access to Information. (a) During Subject to the Pre-restrictions contained in the Confidentiality Agreement, from the date hereof until the Closing PeriodDate, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to Seller (i) all of the Acquired Companies’ propertieswill give Buyers, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives representatives access to the offices, properties, books and records of Seller relating to the Business, (ii) will furnish to Buyers, their 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) will instruct the employees, counsel and financial advisors of Seller to cooperate with Buyer Buyers in its their investigation of the Acquired CompaniesBusiness; provided that no investigation by Buyers or other information received by Buyers shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller hereunder. 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. Notwithstanding anything the foregoing, Buyers shall not have access to personnel records of Seller 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 Seller to risk of liability.
(b) After the Closing Date, the parties agree that they will each cooperate with and make available to the contrary contained hereinother parties, during normal business hours, all books of account and other financial records (including, without limitation, accountant's work papers) pertaining to the Pre-Business (collectively, "Books and Records"), information and employees (without substantial disruption of employment) retained and remaining in existence after the Closing Period, neither Sellers nor Date which are necessary or useful in connection with any Acquired Company shall be required inquiry relating to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers Taxes or any Acquired Company audit, investigation or (2)(x) conflict with dispute, any Law litigation or Order applicable to Sellers investigation or any Acquired Company other matter requiring any such Books and Records, information or the assetsemployees for any reasonable business purpose. The party requesting any such Books and Records, information or operation employees shall bear all of the businessout-of-pocket costs and expenses (including, of Sellers without limitation, attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with providing such Books and Records, information or any Acquired Company or (y) materially breach any Contract (with respect employees. Seller may require certain financial information relating to the obligations placed therein on Business for periods prior to the applicable Acquired Company) Closing Date for the purpose of filing federal, state, local and foreign Tax Returns and other governmental reports, and Buyers agree to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in furnish such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s to Seller at Seller's request and at B▇▇▇▇’s sole cost and expense.
(c) After the Closing, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall notSeller will hold, and shall will use its best efforts to cause its Affiliates and its Representatives not toand their respective officers, contact directors, employees, accountants, counsel, consultants, advisors and agents to hold, in confidence, unless required to disclose by judicial or administrative process or by other requirements of law or if reasonably necessary in connection with any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or disputes arising in connection with this Agreement or the transactions contemplated hereby, all confidential documents and information concerning the Business, except to the extent that such information can be shown to have been (yA) Buyer shall have in the public domain through no right fault of Seller or (B) later lawfully acquired by Seller from sources other than those related to perform invasive or subsurface investigations Seller's prior ownership of the properties or facilities Business and the Purchased Assets. The obligation of any Acquired Company.
(b) Buyer will Seller and its Affiliates to hold any such information obtained pursuant to Section 5.2(a) in confidence in accordance shall be satisfied if they exercise the same care with respect to such information as they would take to preserve the Confidentiality Agreementconfidentiality of their own similar information.
Appears in 1 contract
Sources: Asset Purchase Agreement (Anchor Glass Container Corp)
Access to Information. (a) During Prior to the Pre-Closing PeriodDate, Sellers shallupon reasonable notice to the Company, Parent, potential sources of capital and any rating agencies, prospective lenders and investors shall cause be entitled, through their respective officers, employees and representatives, to make such investigation of the Acquired Companies toproperties, use commercially reasonable efforts to provide Buyer businesses and operations of the Company and its Representatives with reasonable access to (i) all Subsidiaries and such examination of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies Company and its Subsidiaries as Buyer or it reasonably requests (provided that Parent potential sources of capital and any of its Representatives may reasonably request. All access rating agencies, prospective lenders and investigation pursuant to this Section 5.2(a) investors and their respective representatives shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted conduct any such activities in such a manner as not to interfere unreasonably with the normal business or operations of the Acquired CompaniesCompany) and, (C) coordinated through the Companyat Parent’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, to make extracts and Sellers copies of such books and records. Any such investigation and examination shall have the right be conducted during regular business hours and under reasonable circumstances and shall be subject to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a)restrictions under applicable Law. During the Pre-Closing Period, the Sellers shall, and The Company shall cause the Acquired Companies toofficers, employees, consultants, agents, accountants, attorneys and other representatives of the Company and its Subsidiaries to reasonably cooperate with Parent, potential sources of capital, rating agencies, prospective lenders and investors and Parent’s, potential sources of capital, rating agencies’, prospective lenders’ and investors’ representatives in connection with such investigation and examination, and Parent, potential sources of capital, rating agencies, prospective lenders and investors and their representatives shall cooperate with the Company and its representatives and shall use commercially their reasonable efforts to cause minimize any disruption to the business. Notwithstanding anything herein to the contrary, no such investigation or examination shall be permitted to the extent that it would require the Company or any of its employees, counsel, financial advisors, auditors and other authorized Representatives Subsidiaries to cooperate disclose information subject to attorney-client privilege or conflict with Buyer in any confidentiality obligations to which the Company or any of its investigation of the Acquired CompaniesSubsidiaries is bound. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect prior to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing PeriodClosing, without the prior written consent of Sellers a representative of the Company (which consent who shall not be unreasonably withheld, conditioned or delayedidentified in writing to Parent as the representative contemplated by this Section 7.1), (xi) Buyer neither Parent nor any potential sources of capital, rating agencies, prospective lenders and investors shall not, and shall cause its Affiliates and its Representatives not contact any suppliers to, contact any vendoror customers of, supplier or customer the Company in respect of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, hereby and (yii) Buyer neither Parent nor any potential source of capital, rating agency, prospective lender or investor shall have no any right to perform invasive or subsurface investigations of the properties or facilities of the Company or any Acquired Companyof its Subsidiaries.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From and after the Pre-Closing PeriodTime of Distribution, Sellers shallCrane will, and shall will cause the Acquired Companies each Crane Subsidiary to, use commercially reasonable efforts afford to provide Buyer the Company and its Representatives with (at the Company's expense) reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted duplicating rights during normal business hours and upon reasonable advance notice to Sellersall 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 Time of Distribution, the Company will, and will cause each Company Subsidiary to, afford to Crane and its Representatives (Bat Crane's expense) conducted reasonable access and duplicating rights during normal business hours and upon reasonable advance notice to all Information within the Company's possession or control or in such the possession or control of a manner as not Company Subsidiary relating to interfere with Crane, any Crane Subsidiary or the normal operations businesses of the Acquired CompaniesPre-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:
(Ca) coordinated through Each party acknowledges that (i) each of Crane and the Company’s chief executive officer Company (and the members of the Crane Group and the Company Group, respectively) has or designee thereof and may obtain Privileged Information; (Dii) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have there are a number of Actions affecting one or more of their Representatives present at all times during any visitsthe members of the Crane Group and the Company Group; (iii) the parties may have a common legal interest in Actions, examinationsin the Privileged Information, discussions and in the preservation of the confidential status of the Privileged Information, in each case relating to the business of the Crane Group or contacts the Company Group; and (iv) both Crane and the Company intend that the transactions contemplated by this Section 5.2(a). During the Pre-Closing PeriodTransaction Agreements and any transfer of Privileged Information in connection therewith shall not operate as a waiver of any potentially applicable privilege.
(b) Each of Crane and the Company agrees, the Sellers shall, on behalf of itself and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation each member of the Acquired Companies. Notwithstanding anything Group of which it is a member, not to disclose or otherwise waive any privilege attaching to any Privileged Information relating to the contrary contained herein, during business of the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company Group or the assetsCrane Group, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Periodrespectively, without providing prompt written notice to and obtaining the prior written consent of Sellers (the other, which consent shall will not be unreasonably withheld. In the event of a disagreement between any member of the Crane Group and any member of the Company Group concerning the reasonableness of withholding such consent, conditioned no disclosure will be made prior to a final, nonappealable resolution of such disagreement.
(c) Upon any member of the Crane Group or delayed)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 each case relating to the business of the Company Group or the Crane Group, respectively, the recipient of the notice will promptly provide to the other party (xfollowing the notice provisions set forth herein) Buyer shall nota copy of such notice, the intended response, and all materials or information relating to the other Group that might be disclosed. In the event of a disagreement as to the intended response or disclosure, unless and until the disagreement is resolved, the parties will cooperate to assert all defenses to disclosure claimed by either Group, at the cost and expense of the Group claiming such defense to disclosure, and shall cause its Affiliates not disclose any disputed documents or information until all legal defenses and its Representatives not to, contact any vendor, supplier or customer claims of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall privilege have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companybeen finally determined.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Distribution Agreement (Huttig Building Products Inc)
Access to Information. (a) During Subject to Section 5.3 hereof, from the Pre-Closing Perioddate hereof until the earlier of the Effective Time and the termination of this Agreement, Sellers the Company shall, and shall cause the Acquired Companies each of its Subsidiaries to, use commercially at Parent’s expense, afford the advisors, representatives, officers, directors, employees, auditors and other agents of Parent (provided, that Parent shall cause such advisors, representatives, officers, directors, employees, auditors and other agents to treat any information gained thereby as confidential) reasonable efforts access, during normal business hours and upon reasonable advance written notice, and subject to provide Buyer reasonable rules and regulations of the Company, to (a) the Specified Company Employees and, with the prior written consent of a Specified Company Employee (such consent not to be unreasonably withheld, delayed or conditioned), any of the other employees of the Company and its Representatives with reasonable access Subsidiaries to which any Specified Company Employee provides his consent, (ib) all the properties, offices and other facilities of the Acquired Companies’ propertiesCompany and its Subsidiaries and (c) to the extent not prohibited by Law, assets, all books and records, (ii) and all senior management financial, operating and other data and information, with respect to the Business that are in the possession of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer Company or any of its Representatives Subsidiaries, in each case, as Parent may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, (i) if the Company so requires, Parent’s representatives conducting any physical inspection of the properties, offices or other facilities of the Company or one of its Subsidiaries shall be accompanied by one or more representatives of the Company and (ii) the Company shall not be required to provide any such access to the extent that it would require the Company or any of its Subsidiaries to (w) disclose information subject to attorney-client privilege as advised by the Company’s outside counsel (after taking into account the potential for a “continuity of interest” or similar agreement; provided, that, in such instancesany event, Sellers shall inform Buyer of the general nature of the Company will disclose to Parent that it is withholding information being withheld andin reliance upon this Section 5.4), upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner (x) disclose information that would cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not result in consummated, (y) violate applicable Law, or (z) violate any confidentiality obligations to which the Company or any of its Subsidiaries is bound. All requests for such access shall be directed to a Specified Company Employee or such other person as the outcomes described Company may designate in the foregoing clauses (1) or (2)writing to Parent from time to time. Notwithstanding anything Anything herein to the contrary contained hereinnotwithstanding, during prior to the Pre-Closing PeriodClosing, without the express prior written consent of Sellers (the Company, which consent shall not be unreasonably withheld, conditioned neither Parent nor MergerSub, nor any of their advisors, representatives, officers, directors, employees, auditors or delayed)other agents shall contact any customers to, (x) Buyer or vendors or suppliers of, the Company, or shall nothave 53 any right to perform sampling or any invasive or subsurface investigations of any properties or facilities of the Company or any of its Subsidiaries. In exercising its rights hereunder, Parent shall, and shall cause its Affiliates advisors, representatives, officers, directors, employees, auditors and other agents to conduct themselves so as not to unreasonably interfere in the conduct of the Business of the Company and its Representatives not toSubsidiaries prior to the Closing. Parent shall, contact at its sole cost and expense, promptly reimburse the Company for any vendorloss or damage arising from or caused by Parent’s exercise of its rights under this Section 5.4 and shall indemnify, supplier defend and hold harmless the Company and its Subsidiaries from and against any claims, liabilities, damages, judgments or customer expenses (including reasonable attorneys’ fees) incurred by any of an Acquired Company regarding the business, operations, them relating to any injury or prospects of the Acquired Companies damage to any Person or this Agreement property arising or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyresulting therefrom.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. The Stockholder and his attorneys, accountants, tax advisors and financial consultants (acollectively, the "Advisors") During the Pre-Closing Periodhave such knowledge and experience in financial, Sellers shalltax, and shall cause business matters, and, in particular, the Acquired Companies toCompany, use commercially reasonable efforts so as to provide Buyer enable them to utilize the information made available to them in connection with this sale of the Redeemed Shares and its Representatives to evaluate the merits and risks of such sale, especially in light of the contemplated Investor Purchase Agreement. The Stockholder and his Advisors have received, carefully reviewed and understood all documents requested by them in connection with reasonable this Agreement. The Stockholder and his Advisors have had sufficient access to (i) all of the Acquired Companies’ propertiesCompany's business, assets, books financial and accounting records, (ii) all senior management and the Stockholder and his Advisors have obtained sufficient information to evaluate the merits and risks of Stockholder's sale of the Acquired Companies Redeemed Shares and to make such a decision. The Stockholder and his Advisors have had the opportunity to ask questions and receive answers from the Company's directors and officers concerning the Company (iiiincluding, without limitation, the Company's financial condition, strategic plans and current and proposed operations) any other information relating solely which the Stockholder and his Advisors believe to be necessary in order to reach an informed decision regarding the business, properties, assets, books and records and personnel advisability of his sale of the Acquired Companies Redeemed Shares. The Stockholder is satisfied that there are no material facts regarding the Company as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company he has not been fully informed and he is party or by aware that he is selling the Redeemed Shares for a Purchase Price which any of the Acquired Companies’ assets or properties are bound; providedis significantly under market value. WITHOUT LIMITING THE FOREGOING, howeverTHE STOCKHOLDER AND HIS ADVISORS HAVE BEEN MADE SPECIFICALLY AWARE OF THE TRANSACTIONS CONTEMPLATED BY THE INVESTOR PURCHASE AGREEMENT, thatAND ARE FULLY-AWARE OF THE TERMS AND CONDITIONS OF SUCH INVESTOR PURCHASE AGREEMENT, in such instancesINCLUDING, Sellers shall inform Buyer of the general nature of the information being withheld andWITHOUT LIMITATION, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1THAT THE VALUE OF THE COMPANY FOR PURPOSES OF THE INVESTOR PURCHASE AGREEMENT IS TWO HUNDRED TWENTY NINE MILLION (U.S.) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers DOLLARS (which consent shall not be unreasonably withheld, conditioned or delayed$229,000,000), AND THE STOCKHOLDER AND HIS ADVISORS ARE FULLY AWARE THAT SAID VALUATION IS FAR IN EXCESS OF THE VALUATION OF THE COMPANY OF APPROXIMATELY TWENTY SIX MILLION (x$26,000,000) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyESTABLISHED BY THIS TRANSACTION.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During Until the Pre-Closing Periodand upon reasonable advance notice from the Purchaser, the Sellers shallwill allow, and shall will cause the Acquired Companies toto allow, use commercially reasonable efforts to provide Buyer the Purchaser and its Representatives with representatives reasonable access to (i) all during normal business hours and without unreasonable interference with the operation of the Acquired Companies’ properties, assets, books and records, (ii) all senior management business of the Acquired Companies and (iii) any other information relating solely to the businessproperties (including for the purposes of performing ALTA surveys), propertiesbooks, assetsrecords (including personnel records), books and records Contracts and personnel of the Acquired Companies and such other materials and information about the Acquired Companies as Buyer or any of its Representatives the Purchaser may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to SellersNotwithstanding the foregoing, (Bi) conducted the Sellers will not be required to provide the Purchaser or its representatives with access to materials or information in violation of obligations of confidentiality owed to any third party or that is subject to attorney-client or other applicable legal privileges or protections that would be adversely affected by the disclosure of such materials or information to the Purchaser or its representatives or which would violate applicable Law; provided, that the Sellers shall use, and will cause the Acquired Companies to use, commercially reasonable efforts to provide such materials or information in an alternative manner that does not have the foregoing effects, (ii) if the parties are in an adversarial relationship in litigation or arbitration, the furnishing of information, documents or records in accordance with this Section 7.1(a) will be subject to applicable rules relating to discovery, (iii) any access to the Acquired Companies’ properties will be subject to such Acquired Company’s reasonable security and insurance measures, and (iv) the Sellers and the Acquired Companies shall not be required to provide any information or allow any inspection if such provision or inspection would violate applicable Law (including any Competition Law). The Purchaser shall indemnify, defend and hold harmless the Seller Indemnified Parties from and against any and all Losses incurred by the Seller Indemnified Parties arising out of the access rights under this Section 7.1, including any claims by any of the Purchaser’s representatives for any injuries or Losses while present at the Acquired Companies’ facilities.
(b) The Sellers will, no later than 15 Business Days prior to the anticipated Closing Date, provide to the Purchaser a manner as not to interfere with the normal operations schedule setting forth a list of all motor vehicles owned or leased by any of the Acquired Companies, including the owner or lessee and the anticipated location, as of the Closing Date, of such motor vehicles.
(Cc) coordinated through From and after the Company’s chief executive officer Closing Date and for a period of seven years thereafter, in connection with any reasonable business purpose relating to periods or designee thereof and (D) conducted at Buyer’s sole cost and expenseoccurrences prior to the Closing Date, and including the determination of any matter relating to the rights or obligations of the Sellers shall have under this Agreement, upon reasonable advance notice from the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing PeriodSellers, the Purchaser will allow the Sellers shall, and shall cause their respective representatives reasonable access during normal business hours and without unreasonable interference with the operation of the business of the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors such materials and other authorized Representatives to cooperate with Buyer in its investigation information about the Acquired Companies as the Sellers may reasonably request and specified members of management of the Acquired CompaniesCompanies as the parties may reasonably agree. Notwithstanding anything to the contrary contained hereinforegoing, during (i) the Pre-Closing Period, neither Sellers nor any Acquired Company shall Purchaser will not be required to provide the Sellers or their respective representatives with access to materials or disclose information where such access that is subject to obligations of confidentiality owed to any third party or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the that is subject to attorney-client privilege or other immunity applicable legal privileges and (ii) if the parties are in an adversarial relationship in litigation or protection from disclosure arbitration, the furnishing of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole documents or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence records in accordance with the Confidentiality Agreementthis Section 7.1(c) will be subject to applicable rules relating to discovery.
Appears in 1 contract
Access to Information. (a) During Subject to the Pre-restrictions contained in the Confidentiality Agreement, from the date hereof until the Closing PeriodDate, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to Seller (i) all of the Acquired Companies’ propertieswill give Buyer, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives representatives access to the offices, properties, books and records of Seller relating to the Business, (ii) will 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) will instruct the employees, counsel and financial advisors of Seller to cooperate with Buyer in its investigation of the Acquired CompaniesBusiness; PROVIDED that no investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller hereunder. 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. Notwithstanding anything the foregoing, Buyer shall not have access to personnel records of Seller 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 Seller to risk of liability.
(b) After the Closing Date, each party agrees that it will cooperate with and make available to the contrary contained hereinother party, during normal business hours, all books of account and other financial records (including, without limitation, accountant's work papers) pertaining to the Pre-Business (collectively, "Books and Records"), information and employees (without substantial disruption of employment) retained and remaining in existence after the Closing Period, neither Sellers nor Date which are necessary or useful in connection with any Acquired Company shall be required inquiry relating to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers Taxes or any Acquired Company audit, investigation or (2)(x) conflict with dispute, any Law litigation or Order applicable to Sellers investigation or any Acquired Company other matter requiring any such Books and Records, information or the assetsemployees for any reasonable business purpose. The party requesting any such Books and Records, information or operation employees shall bear all of the businessout-of-pocket costs and expenses (including, of Sellers without limitation, attorneys' fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with providing such Books and Records, information or any Acquired Company or (y) materially breach any Contract (with respect employees. Seller may require certain financial information relating to the obligations placed therein on Business for periods prior to the applicable Acquired Company) Closing Date for the purpose of filing federal, state, local and foreign Tax Returns and other governmental reports, and Buyer agrees to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in furnish such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s to Seller at Seller's request and at B▇▇▇▇’s sole cost and expense.
(c) After the Closing, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall notSeller will hold, and shall will use its best efforts to cause its Affiliates and its Representatives not toand their respective officers, contact directors, employees, accountants, counsel, consultants, advisors and agents to hold, in confidence, unless required to disclose by judicial or administrative process or by other requirements of law or if reasonably necessary in connection with any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or disputes arising in connection with this Agreement or the transactions contemplated hereby, all confidential documents and information concerning the Business, except to the extent that such information can be shown to have been (yA) Buyer shall have in the public domain through no right fault of Seller or (B) later lawfully acquired by Seller from sources other than those related to perform invasive or subsurface investigations Seller's prior ownership of the properties or facilities Business and the Purchased Assets. The obligation of any Acquired Company.
(b) Buyer will Seller and its Affiliates to hold any such information obtained pursuant to Section 5.2(a) in confidence in accordance shall be satisfied if they exercise the same care with respect to such information as they would take to preserve the Confidentiality Agreementconfidentiality of their own similar information.
Appears in 1 contract
Sources: Asset Purchase Agreement (Anchor Glass Container Corp)
Access to Information. (a) During From the Pre-Closing Perioddate of this Agreement until the Closing, Sellers DuPont shall, and shall cause its Subsidiaries (including the Acquired Companies DTI Companies) to, use commercially reasonable efforts to provide give Buyer and its their authorized Representatives with reasonable access to (i) all the DTI Books and Records, to the DuPont Books and Records related to the DTI Business and to such personnel, offices and other facilities and properties of the Acquired Companies’ propertiesDTI Business as Buyer, assetsfrom time to time, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All ; PROVIDED, that any such access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours at a reasonable time, upon reasonable advance notice to Sellers, (B) conducted DuPont and in such a manner as not to interfere unreasonably with the normal operations operation of any business conducted by any Seller or DTI Company. All such information and access shall be subject to the terms and conditions of the Acquired Companies, confidentiality agreement dated September 2002 between Parent and DuPont (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2"CONFIDENTIALITY AGREEMENT"). Notwithstanding anything to the contrary contained hereinin this Agreement, during neither the PreSellers nor any of their Subsidiaries (including the DTI Companies) shall be required to disclose to Buyer or its authorized Representatives any information (i) related to the Sale Process or DuPont's or its 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 DTI Business without being primarily prepared for the Sale Process, (ii) which DuPont believes in good faith (after consultation with counsel, which may be in-Closing Periodhouse counsel) that doing so is reasonably likely to violate any Contract or Law to which DuPont is a party or is subject or cause a Privilege which DuPont 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 DuPont's good faith judgment (after consultation with counsel, without which may be in-house counsel) adversely affect in any material respect DuPont's position in any pending or, what DuPont believes in good faith (after consultation with counsel, which may be in-house counsel) could be, future litigation or (iii) if DuPont or any of its Subsidiaries, on the prior written consent one hand, and Buyer or any of Sellers its Subsidiaries, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; PROVIDED, that, in the cases of clauses (i) and (ii) above, the parties hereto shall cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of DuPont (after consultation with counsel, which consent may be in-house counsel)) reasonably be likely to result 118 in the violation of any such Contract or Law or reasonably be likely to cause such Privilege to be undermined with respect to such information; PROVIDED, FURTHER, that DuPont shall not be unreasonably withheld, conditioned or delayed), (x) notify Buyer shall notthat such disclosures are reasonably likely to violate DuPont's or its Subsidiaries' obligations under any such Contract or Law or are reasonably likely to cause such Privilege to be undermined, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) communicate to Buyer shall have no right in reasonable detail (A) the facts giving rise to perform invasive or subsurface investigations such notification and (B) the subject matter of such information (to the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant extent it is able to Section 5.2(a) in confidence do so in accordance with the Confidentiality Agreementforegoing proviso) and (z) in the case where such disclosures are reasonably likely to violate DuPont's or its Subsidiaries' obligations under any Contract, use reasonable commercial efforts to seek consent from the applicable third party to any such Contract with respect to the disclosures prohibited thereby (to the extent not otherwise expressly prohibited by the terms of such Contract).
Appears in 1 contract
Access to Information. From the Signing Date until the Closing, Seller shall (a) During furnish Buyer and its Representatives and Financing Sources with such financial, operating and other data and information as Buyer or any of its Representatives or Financing Sources may reasonably request related to (i) the Pre-Closing PeriodBusiness, Sellers shall, and shall cause or (ii) the Acquired Companies to, Purchased Assets; (b) use commercially reasonable efforts to provide Buyer (i) sufficiently in advance of the Closing, copies of such information as is reasonably requested by Buyer and its Representatives with reasonable access in order for Buyer to (i) all assume operations on the Closing Date for the transition of the Acquired Companies’ propertiesEnrollees and continuity of care”acqired, assets, books and records, (ii) all senior copies of such other information as is necessary for the operation, ownership and management of the Acquired Companies Business or which is otherwise reasonably requested by Buyer, and which Seller is permitted by applicable Law to provide or which is required in writing to be provided to Buyer by DFS, DOH or CMS (and Seller shall provide such written consents and authorizations as may be reasonably necessary for Buyer to have access to materials on file with any Governmental Authority), including any information as may be required to permit Buyer to satisfy its obligations to any Governmental Authority following the Closing, including any third party accreditation or review organization (such as the National Committee for Quality Assurance); and (iiic) any other information relating solely make available to the businessofficers, propertiesemployees, assetsaccountants, books counsel and records other Representatives of Buyer upon the reasonable request of Buyer and personnel during normal working hours, officers, accountants, counsel, consultants, investment banker and other Representatives or agents of Seller for discussion of the Acquired Companies Business as Buyer or any of its Representatives may reasonably request. All access and investigation Any inquiries pursuant to this Section 5.2(a) Section 6.02 shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired CompaniesBusiness or any other businesses of Seller. Nothing in this Agreement or any of the other Transaction Documents to the contrary shall in any manner restrict the ability of Buyer, from and after the date of this Agreement, to discuss the business and affairs of Seller or its Subsidiaries with any Governmental Authority having jurisdiction over Seller or its Subsidiaries or the fiscal intermediaries administering Seller’s payor programs. From the date hereof until the earlier of (Ci) coordinated through the CompanyClosing Date or (ii) the date this Agreement is terminated pursuant to Article IX, Seller and Buyer shall cooperate to contact such third parties, including customers, prospective customers, specifying agencies, vendors or suppliers of Seller and its Subsidiaries, as Seller and Buyer mutually deem reasonably necessary. Prior to the Closing Date and after any termination of this Agreement, each Party shall hold and shall cause its Representatives to hold, in confidence, all confidential documents and information concerning the other Party’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have any of its Subsidiaries furnished to a Party or its Representatives in connection with the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts transactions contemplated by this Section 5.2(a). During Agreement in the Pre-Closing Periodmanner and for the time period specified in (i) the Confidentiality Agreement, dated June 24, 2017 (the Sellers shall“Confidentiality Agreement”) and (ii) the Clean Team Agreement dated July 21, 2017, in each case, between Buyer and Seller, and shall cause the Acquired Companies to, use commercially reasonable efforts as further amended from time to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundtime; provided, however, that, in such instancesprior to the Closing Date and prior to any termination of this Agreement, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described nothing in the foregoing clauses (1sentence shall be deemed to limit any customary disclosures made by Buyer and its Affiliates to the Financing Sources, rating agencies, prospective traders, prospective Financing Sources, existing lenders (and related agents) or (2)otherwise in connection with efforts or activities by Buyer or the Financing Sources to obtain the Financing. Notwithstanding anything the foregoing, nothing in this Section 6.02 shall be construed to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned obligate Seller or delayed), (x) its Subsidiaries to provide any information or reports to Buyer shall not, and shall cause its Affiliates in a form that Seller and its Representatives Subsidiaries do not to, contact generate in the ordinary course of business consistent with past practice if providing information or reports in such form would be reasonably expected to interfere in any vendor, supplier or customer of an Acquired Company regarding material respect with the business, operations, or prospects conduct of the Acquired Companies Business or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations any other businesses of the properties or facilities of any Acquired CompanySeller.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. The Company shall (a) During the Pre-Closing Period, Sellers shall, and shall cause each of its Subsidiaries to) afford to officers, employees, counsel, investment bankers, accountants and other authorized representatives (“Representatives”) of Parent reasonable access, in a manner not disruptive to the Acquired Companies to, use commercially reasonable efforts to provide Buyer operations of the business of the Company and its Representatives with Subsidiaries, during normal business hours and upon reasonable access to (i) all of notice throughout the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely period prior to the businessEffective Time, to the properties, assets, books and records of the Company and its Subsidiaries and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information concerning the business, properties and personnel of the Acquired Companies Company and its Subsidiaries in each case as Buyer or any of its Representatives may reasonably request. All access be requested and investigation pursuant necessary to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with consummate the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts transactions contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, Agreement (and shall cause the Acquired Companies to, use commercially reasonable efforts not to cause its employees, counsel, financial advisors, auditors and conduct further due diligence or other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound); provided, however, thatthat nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Sub if such disclosure would, in such instances, Sellers shall inform Buyer the reasonable judgment of the general nature Company, (i) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (ii) violate applicable Law or the provisions of any agreement to which the Company or any of its Subsidiaries is a party or (iii) jeopardize any attorney-client or other legal privilege; provided further, however, that nothing herein shall authorize Parent or its Representatives to undertake any further investigation of the information being withheld andCompany, upon Buyer’s request and including environmental investigations or sampling at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in properties owned, operated or leased by the foregoing clauses (1) Company or (2)its Subsidiaries. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall Parent agrees that it will not, and shall will cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold use any information obtained pursuant to Section 5.2(a) in confidence in accordance with this Section 6.2 for any competitive or other purpose unrelated to the consummation of the transactions contemplated by this Agreement pursuant to this Agreement. The Confidentiality/Non-Disclosure Agreement, dated May 2, 2007 (the “Confidentiality Agreement”), between the Company and Parent shall apply with respect to information furnished by the Company, its Subsidiaries and the Company’s officers, employees, and other Representatives hereunder.
Appears in 1 contract
Sources: Merger Agreement (Aquantive Inc)
Access to Information. (a) During From and after the Pre-Closing Perioddate of this Agreement, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to Company will (i) give Parent and Merger Sub and their respective Representatives reasonable access (during regular business hours upon reasonable notice) to all employees, plants, offices, warehouses and other facilities and to all books, contracts, commitments and records (including Tax returns) of the Acquired CompaniesCompany and its Subsidiaries and cause the Company’s and its Subsidiaries’ properties, assets, books respective Representatives to provide access to their work papers and recordssuch other information as Parent or Merger Sub may reasonably request, (ii) all senior management at the request of Parent, consult with Parent and Merger Sub concerning, and keep Parent and Merger Sub reasonably apprised on a timely basis of the Acquired Companies status of, any negotiations, material discussions and proposed resolutions or settlements (x) with any Governmental Entity with respect to any material environmental matter or (y) with the representatives of collectively bargained employees of the Company or any of its Subsidiaries, and in each case will consider in good faith suggestions made by Parent or Merger Sub concerning any of the foregoing, (iii) any permit Parent and Merger Sub to make such reasonable inspections as they may require, (iv) cause its officers and those of its Subsidiaries to furnish Parent and Merger Sub with such financial and operating data and other information relating solely with respect to the business, properties, assets, books and records properties and personnel of the Acquired Companies Company and its Subsidiaries as Buyer Parent or Merger Sub may from time to time reasonably request and (v) furnish promptly to Parent and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Representatives may reasonably request. All access and investigation Subsidiaries during such period pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations requirements of the Acquired Companies, (C) coordinated through the Company’s chief executive officer federal or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companystate securities Laws.
(b) Buyer will hold any information Information obtained by Parent or Merger Sub pursuant to Section 5.2(aSection 5.03(a) in confidence in accordance with shall be subject to the provisions of the Confidentiality Agreement.
(c) No investigation by and of the parties or their respective Representatives shall affect the representations, warranties, covenants or agreements of the other parties set forth herein.
(d) Prior to the Closing, the Company will take such reasonable actions as may be requested by Parent, to the extent such actions are necessary to minimize or eliminate German real property transfer taxes that would otherwise arise as a result of the Merger; provided, that the Company shall not be required to take any action that would cause it or any of its Subsidiaries to incur a significant cost or liability until all conditions to the Merger set forth in Article VI (other than those conditions that by their nature are to be satisfied at the Closing), have been satisfied or waived (by the party entitled to grant such waiver).
Appears in 1 contract
Access to Information. (a) During From the Pre-Agreement Date through the Closing PeriodDate, Sellers shallbut subject to any rights of third Persons, upon reasonable notice, BHP Hawaii and BHP Pacific shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all afford the officers, employees and authorized agents and representatives of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All reasonable access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersthe offices, (B) conducted in such a manner as not to interfere with the normal operations properties and Books and Records of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof Subsidiary and (Dii) conducted at Buyer’s sole cost furnish to the officers, employees and expense, authorized agents and Sellers shall have the right to have one or more representatives of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, Buyer such additional financial and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors operating data and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or regarding the assets, properties and Liabilities of Subsidiary and the Business (or operation of the business, of Sellers or any Acquired Company or (ylegible copies thereof) materially breach any Contract (with respect as Buyer may from time to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundtime reasonably request; provided, however, that, in that such instances, Sellers investigation shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate not unreasonably interfere with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described businesses or operations of BHP Hawaii, BHP Pacific or Subsidiary. Without limiting the generality of the foregoing, BHP Hawaii and BHP Pacific shall cooperate fully with Buyer's investigation of such assets, properties and Liabilities and the Business and provide copies of such documents in its possession as Buyer may reasonably request to confirm the foregoing clauses (1title to any and all properties or assets owned or leased by Subsidiary. No Seller Indemnified Party shall be responsible for any bodily injury suffered by any of the officers, employees or authorized agents and representatives of Buyer conducting any investigation of Subsidiary's assets and properties. No investigation by Buyer shall affect the representations and warranties of BHP Hawaii.
(b) Subsection 6.1
(a) notwithstanding and except for background environmental records reviews of any Governmental Authority, requests for certified charter documents or (2). Notwithstanding anything to copies of UCC filings from any Governmental Authority and other routine requests for information maintained by Government Authorities, (i) Buyer shall not investigate any matter with any Governmental Authority (including contacting any official thereof) having jurisdiction over any aspect of the contrary contained hereinBusiness or Subsidiary's assets or properties, during unless and until the Pre-Closing Period, without the prior written consent of Sellers BHP Hawaii (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer to the making of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated herebysuch investigation has been received by Buyer, and (yii) Buyer Buyer's right of examination and access pending the Closing with respect to environmental matters relating to the Real Property shall have be limited to an examination of existing records and interviews with Subsidiary's personnel as authorized in writing by BHP Hawaii, and in no right to perform invasive or subsurface investigations event shall include physical testing of the properties or facilities Real Property for the presence of any Acquired CompanyHazardous Material.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Pre-Agreement Date through Closing Periodor any earlier termination of this Agreement, Sellers shallsubject to the Confidentiality Agreement and this Agreement, the Seller Parties will and shall will cause the Acquired Companies to, use commercially reasonable efforts respective Company Entities over which they have control to provide Buyer and its Buyer’s authorized representatives that are reasonably acceptable to Parent (the “Buyer Representatives”) reasonable access during normal business hours and upon reasonable notice from Buyer, to the properties, facilities, premises, officers, Books and Records of the Business, and furnish Buyer and Buyer’s Representatives with reasonable access to (i) all of the Acquired Companies’ propertiessuch financial, assets, books operating and records, (ii) all senior management of the Acquired Companies other data and (iii) any other information relating solely related to the business, properties, assets, books and records and personnel of the Acquired Companies Business as Buyer or any of its Buyer’s Representatives may reasonably request. All , provided that such access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted or request is made in such a manner as that does not to unreasonably interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a)Business. During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation Without limitation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld andforegoing, upon Buyer’s reasonable request and at Bby ▇▇▇▇’s sole cost ▇, Parent shall deliver to Buyer true, correct and expense, complete copies of the unaudited center-level profit and loss statements and balance sheets for the Business and such other materials as are reasonably cooperate with required by Buyer to provide such information, in whole or in part, in a manner that would comply with its financial reporting obligations. Buyer and the Buyer Representatives will not result in have access to any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, personnel other than ▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ without the prior written consent of Sellers Parent (which consent shall will not be unreasonably withheld, conditioned or delayed), (x) except that Buyer shall nothave the opportunity to offer introductory meetings with the employees set forth on Schedule 5.3 no less than 45 days prior to Closing. Without limiting any right or obligation under the Confidentiality Agreement, Buyer will, and shall will cause its Affiliates representatives and agents to, keep confidential all confidential or nonpublic information that Buyer or any of the Buyer Representatives receives from or on behalf of the Seller Parties or the Company Entities in the course of the actions contemplated in this Section 5.3, and Buyer will, and will cause its Representatives representatives and agents, not to, contact use any vendorof such confidential information except in connection with this Agreement. Notwithstanding the foregoing, supplier no Seller Party or customer Company Entity will be required to provide or cause to be provided access to or disclose or cause to be disclosed information where such access or disclosure would reasonably be expected to jeopardize the attorney-client privilege, contravene any applicable Law or contravene any existing confidentiality obligation of such Seller Party or Company Entity; provided, that such Seller Party or Company Entity shall use its commercially reasonable efforts to provide or cause to be provided access or disclose or cause to be disclosed such information in an Acquired Company regarding the business, operations, alternative manner that does not so jeopardize such privilege or prospects of the Acquired Companies contravene applicable Law or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyconfidentiality obligations.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers shallperiod from the date hereof until the Effective Time, and subject to applicable Law and the Confidentiality Agreement, the Company shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of give to Parent, its counsel, lenders (including the Acquired Companies’ Financing Sources), financial advisors, accountants, consultants, agents and other authorized representatives reasonable access during normal business hours, upon reasonable request, to the offices, properties, facilities, assets, books books, records, Service Providers and recordsagents of the Company and its Subsidiaries, (ii) all senior management furnish to Parent, its counsel, lenders (including the Financing Sources), financial advisors, accountants, consultants, agents and other authorized representatives such financial and operating data and other information (including the work papers of the Acquired Companies Company’s independent accountants upon receipt of any required consents from such accountants and subject to the execution of customary access letters) as such Persons may reasonably request and (iii) instruct the Service Providers, counsel, financial advisors, accountants, consultants, agents and other authorized representatives of the Company and its Subsidiaries to cooperate with Parent in its investigation of the Company and its Subsidiaries; provided that any other such access shall be afforded and any such information relating solely shall be furnished at Parent’s expense. Information disclosed by the Company pursuant to this Section 5.02 shall be deemed to be disclosed pursuant to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably requestConfidentiality Agreement. All access and Any investigation pursuant to this Section 5.2(a) Section 5.02 shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired Companiesbusiness of the Company and its Subsidiaries. No information or knowledge obtained in any investigation pursuant to this Section 5.02 shall affect or be deemed to modify any representation or warranty made by the Company hereunder.
(b) The provisions of Section 5.02(a) shall not require and shall not be construed to require the Company to permit any access to or any inspection or review of, or to disclose or otherwise make available, any information that in the reasonable judgment of the Company would reasonably be expected to (i) waive the protection of any attorney‑client privilege, (Cii) coordinated through result in the Company’s chief executive officer disclosure of any personal information that would expose the Company to the risk of liability, (iii) violate any obligations of the Company or designee thereof and (D) conducted at Buyer’s sole cost and expenseany of its Subsidiaries with respect to confidentiality to any Third Party or otherwise breach, and Sellers shall have contravene or violate, constitute a default under, or give a Third Party the right to have one terminate or more accelerate an obligation under, any then effective Contract to which the Company or any of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During its Subsidiaries is a party (and the Pre-Closing Period, the Sellers shall, and Company shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives any Contract entered into after the date of this Agreement to cooperate with Buyer in its investigation not contain any obligations of the Acquired Companies. Notwithstanding anything nature referred to the contrary contained hereinin this clause (iii)), during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(xiv) conflict violate any applicable Law. In the event that the Company objects to any request submitted pursuant to and in accordance with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (ySection 5.02(a) materially breach any Contract (with respect to the obligations placed therein and withholds information on the applicable Acquired Company) to which an Acquired Company is party or by which basis of any of the Acquired Companies’ assets foregoing clauses (i), (ii), (iii) or properties are bound; provided(iv), however, that, in such instances, Sellers the Company shall inform Buyer of Parent as to the general nature of the information what is being withheld andand shall use reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not suffer from any of the foregoing impediments, upon Buyer’s request including through the use of reasonable best efforts to implement appropriate and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer mutually agreeable measures to provide permit the disclosure of such information, in whole or in part, information in a manner that would not result in any of to remove the outcomes described in basis for the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyobjection.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Predate hereof until the Closing Date, subject to any applicable Law, the attorney-Closing Periodclient 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) afford the Representatives of the Acquiror reasonable access, during normal business hours, to the offices, properties, facilities, books and records of the Company and the Transferred Subsidiaries, (ii) furnish to the Representatives of the Acquiror such additional financial and operational data and other information regarding the Company and the Transferred Subsidiaries as the Acquiror may from time to time reasonably request and (iii) make available to the Representatives 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, the Transferred Subsidiaries and their businesses and personnel into the Acquiror’s organization following the Closing; provided, however, that the reasonableness of 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 operations of the Company or the Transferred Subsidiaries; provided, further, that the auditors and independent accountants of the Company and the Transferred Subsidiaries shall not be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants. If so reasonably requested by the 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 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 complying with any request by or on behalf of the Acquiror or any of its Affiliates in connection with this Section 6.02(a).
(b) In addition to the provisions of Section 6.03, for a period of six (6) years post-Closing, in connection with (x) any response to the request or at the direction of a Governmental Authority, (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), subject to any applicable Law, the attorney-client or other legal privileges and contractual confidentiality obligations, upon reasonable prior notice, the Acquiror shall, and shall cause the Acquired Companies Company and the Transferred Subsidiaries to, use commercially reasonable efforts to provide Buyer afford the Sellers’ Representative and each Seller and its Affiliates and Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesaccess, assetsduring normal business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, pre-Closing books and records and personnel of the Acquired Companies as Buyer or any Company and the Transferred Subsidiaries (including, for the avoidance of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellersdoubt, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors Tax Returns and other authorized Representatives information and documents relating to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundTax matters); provided, however, that, in that such instances, Sellers investigation shall inform Buyer not unreasonably interfere with the business or operations of the general nature Acquiror or any of its Affiliates; and provided, further, that the auditors and independent accountants of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole Acquiror or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent its Affiliates shall not be unreasonably withheldobligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants. If so reasonably requested by the Acquiror, conditioned or delayed), (x) Buyer shall noteach Seller shall, and shall cause its Affiliates (as applicable) to, enter into a customary joint defense agreement with any one or more of the Acquiror and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right Affiliates with respect to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained to be provided to such Seller or its Affiliates or Representatives pursuant to Section 5.2(a) this Section 6.02(b). Each Seller shall reimburse the Acquiror promptly for any reasonable out-of-pocket expenses incurred by the Acquiror and its Affiliates in confidence complying with any request by or on behalf of such Seller or its Affiliates or Representatives in accordance connection with the Confidentiality Agreementthis Section 6.02(b).
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers The Seller Parties shall, and shall cause the Acquired Companies their respective Affiliates to, use commercially provide Purchaser and its officers (or individuals in similar positions), directors (or individuals in similar positions), employees, agents, counsel, accountants, financial advisors, consultants and other representatives (each, a “Representative”) with reasonable efforts access during normal business hours, upon reasonable prior notice, to provide Buyer all Representatives, assets and properties, and the books and records, of the Subject Entities and the LIHTC Funds and their respective Subsidiaries and the books and records of the Seller Parties and their respective controlled Affiliates (other than the Subject Entities, the LIHTC Funds and their respective Subsidiaries) relating to the Subject Entities, the LIHTC Funds and their respective Subsidiaries, the Assets, the Assumed Liabilities and the Business; provided, that such access does not unreasonably interfere with the normal operations of the Seller Parties. The Seller Parties shall, and shall cause their respective Subsidiaries to, furnish Purchaser and its Representatives with reasonable access to all such information and data (i) all including copies of the Acquired Companies’ propertiescontracts, assets, Company Plans and other books and records) concerning the Subject Entities, (ii) all senior management of LIHTC Funds and their respective Subsidiaries, the Acquired Companies Assets, the Assumed Liabilities and (iii) any other information relating solely to the business, properties, assets, books Business and records and personnel of the Acquired Companies their respective operations as Buyer Purchaser or any of its Representatives may reasonably request. All request in connection with such investigation or its rights under this Section 5.2; provided, however, that (i) the auditors and outside accountants of the Seller Parties 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 investigation pursuant substance reasonably acceptable to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellerssuch auditors or accountants, as applicable, (Bii) conducted the Seller Parties shall not be obligated to make any information available that would, in such a manner as not to interfere with the normal operations reasonable judgment of Parent, violate or jeopardize any applicable attorney client privilege or any applicable contractual confidentiality obligation (it being understood that the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers Seller Parties shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives such contractual obligation to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (waived with respect to the obligations placed therein on exercise of Purchaser’s rights under this Section 5.2 and the applicable Acquired Company) access to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2hereunder). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent All such information shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence kept confidential in accordance with the terms of the Confidentiality Agreement, dated as of July 9, 2008, between JEN Partners LLC and Parent.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Municipal Mortgage & Equity LLC)
Access to Information. (a) During From the Pre-Execution Date until the Closing PeriodDate, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to Seller will (i) all of the Acquired Companies’ propertiesgive Buyer, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives representatives reasonable access upon reasonable prior notice to the offices, properties, books and records of Seller and its Subsidiaries relating to the Business, (ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Business as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller to cooperate with Buyer in its investigation of the Acquired CompaniesBusiness. 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 and its Subsidiaries. Notwithstanding anything the foregoing, Buyer may not under any circumstances conduct or cause to be conducted any sampling or other invasive investigation of the air, soil, soil gas, surface water, groundwater, building materials or other environmental media at any property related to the contrary contained hereinSeller or its Subsidiaries or the Business, during including the Pre-Purchased Assets, the Facilities and the Real Property. Buyer bears the risk of injury to any of its employees, advisors or representatives who are provided access to the offices or properties of Seller or its Subsidiaries hereunder, and shall, in accordance with Article 13, indemnify, defend and hold Seller and its Affiliates harmless for all Damages resulting from Buyer’s access to the offices or properties of Seller or its Subsidiaries provided hereunder except for such Damages resulting from the gross negligence or willful misconduct of Seller, its Subsidiaries or any employee of such Person.
(b) On and after the Closing PeriodDate, neither Sellers nor Seller and its Subsidiaries will afford promptly to Buyer and its agents reasonable access to their respective books of account, financial, employment and other records, information, employees and auditors to the extent necessary or useful for Buyer in connection with any Acquired Company shall be required audit, investigation, dispute or litigation or any other reasonable business purpose relating to provide access or disclose information where the Business; provided that any such access by Buyer shall not unreasonably interfere with the conduct of the business of Seller or disclosure wouldany of its Subsidiaries.
(c) Notwithstanding anything in this Section 5.02 to the contrary, in Sellers’ reasonable judgmentBuyer shall not have access to (i) personnel records of Seller relating to individual performance or evaluation records or medical histories (other than occupational histories), (1ii) materials entitled to legal privilege (or which could jeopardize the attorney-client privilege of Seller or other immunity or protection from disclosure of Sellers or any Acquired Company its Subsidiaries) or (2)(xiii) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (materials with respect to the obligations placed therein on the applicable Acquired Company) which Seller or its Subsidiaries owe an obligation of confidentiality to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provideda third party. Buyer and Seller shall endeavor in good faith to make appropriate substitute disclosure arrangements, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in partif practicable, in a manner that would does not result in give rise to any of the outcomes described circumstances referred to in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companypreceding sentence.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Predate of this Agreement until the Closing Date, upon reasonable prior notice, and except as determined in good faith to be necessary to ensure compliance with any applicable Law, preserve any applicable privilege (including the attorney-Closing Periodclient privilege) or comply with any contractual confidentiality obligations, Sellers Seller shall, shall cause the Business Subsidiaries to, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employeesRepresentatives to, counsel(i) afford the Representatives of Buyer reasonable access, during normal business hours, upon reasonable notice, to the properties, operations, books and records of the Business Subsidiaries and of Seller and its Affiliates in respect of the Business Subsidiaries and the Business, (ii) furnish or cause to be furnished to the Representatives of Buyer such additional financial advisors, auditors and operating data and other authorized information regarding the Business as Buyer may from time to time reasonably request, (iii) use its commercially reasonable efforts (including executing a customary joint defense agreement with Buyer) to obtain the assistance of Seller’s auditors, accountants, counsel and other advisors in connection with Buyer’s investigation and (iv) make available to the Representatives of Buyer and its Affiliates those employees of Seller and the Business Subsidiaries whose assistance, expertise, testimony, notes and recollections or presence are necessary to cooperate with assist Buyer in connection with its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which inquiries for any of the Acquired Companies’ assets or properties are boundpurposes referred to above; provided, however, that, in that such instances, Sellers investigation (x) shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate not unreasonably interfere with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in businesses, personnel or operations of Seller, the foregoing clauses (1Selling Corporations, the Business Subsidiaries or any of their Affiliates and (y) shall not involve any sampling or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, intrusive environmental investigation at any Leased Real Property without the prior written consent of Sellers Seller (which such consent shall not to be unreasonably withheld, conditioned or delayed); and provided, further, that the auditors and accountants of Seller, the Business Subsidiaries or any of their 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. If reasonably requested by Seller, Buyer shall enter into a customary joint defense agreement with Seller, the Selling Corporations, and the Business Subsidiaries with respect to any information to be provided to Buyer pursuant to this Section 5.02(a). No information or knowledge obtained in any review pursuant to this Section 5.02(a) shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the transactions contemplated by this Agreement in accordance with the terms and provisions hereof, nor shall it prejudice any right or entitlement of any Buyer Indemnified Parties to indemnification under this Agreement.
(b) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with the preparation of financial statements or U.S. Securities and Exchange Commission reporting obligations, upon reasonable prior notice, and except as determined in good faith to be necessary to (i) ensure compliance with any applicable Law, (xii) preserve any applicable privilege (including the attorney-client privilege) or (iii) comply with any contractual confidentiality obligations, Buyer shall, and shall notcause each of the Business Subsidiaries, its Affiliates, and use reasonable best efforts to cause its Representatives to, (A) afford the Representatives of Seller and its Affiliates reasonable access, during normal business hours, upon reasonable notice, to the properties, books and records of Buyer and its Affiliates in respect of the Business Subsidiaries and the Business, (B) furnish or cause to be furnished to the Representatives of Seller and its Affiliates such additional financial and other information regarding the Business Subsidiaries and their Affiliates and the Business as Seller or its Representatives may from time to time reasonably request, (C) use its reasonable best efforts to obtain the assistance of Buyer’s auditors, accountants, counsel and other advisors in connection with Seller’s preparation of financial statements after the Closing and (D) make available to the Representatives of Seller and its Affiliates those employees of Buyer and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence may be necessary to assist Seller in connection with its inquiries for any of the purposes referred to above; provided, however, that such investigation shall not unreasonably interfere with the business or operations of Buyer or any of its Affiliates; and provided, further, that the auditors and accountants of Buyer 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. If so requested by Buyer, Seller or one of its Affiliates shall enter into a customary joint defense agreement with Buyer and its Affiliates with respect to any information to be provided to Seller pursuant to this Section 5.02(b).
(c) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with the preparation of financial statements or U.S. Securities and Exchange Commission reporting obligations, 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, Seller shall, and shall cause its Affiliates and use reasonable best efforts to cause its Representatives not to, contact any vendor, supplier (A) furnish or customer cause to be furnished to the Representatives of an Acquired Company Buyer and its Affiliates such additional financial and other information regarding the businessBusiness Subsidiaries and their Affiliates and the Business as Buyer or its Representatives may from time to time reasonably request, (B) use its reasonable best efforts to obtain the assistance of Seller’s auditors, accountants, counsel and other advisors in connection with Buyer’s preparation of financial statements after the Closing (other than with respect to discontinued operations) and (C) make available to the Representatives of Buyer and its Affiliates those employees of Seller and its Affiliates whose assistance, expertise, testimony, notes and recollections or prospects presence may be necessary to assist Buyer in connection with its inquiries for any of the Acquired Companies purposes referred to above; provided, however, that such investigation shall not unreasonably interfere with the business or operations of Seller or any of its Affiliates; and provided, further, that the auditors and accountants of Seller 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. If so requested by Seller, Buyer or one of its Affiliates shall enter into a customary joint defense agreement with Seller and its Affiliates with respect to any information to be provided to Buyer pursuant to this Section 5.02(c).
(d) All information received by Buyer and given by or on behalf of the Seller or the Business Subsidiaries in connection with this Agreement or and the transactions contemplated herebyhereby will be held by Buyer and its Affiliates, agents, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained representatives as “Confidential Information”, as defined in, and pursuant to Section 5.2(a) in confidence in accordance with the terms of, the Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Corelogic, Inc.)
Access to Information. (a) During Subject to applicable Law, from the Pre-date hereof to the Closing PeriodDate, Sellers shallPWM shall (a) give, and shall cause the Acquired Health Forward Group Companies toto give, use commercially reasonable efforts to provide Buyer CBPO and its Representatives with Representatives, upon prior written notice, reasonable access to (i) all of the Acquired Companies’ propertiesaccess, assetsduring normal business hours and under reasonable circumstances, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the businessoffices, properties, assets, books and records and personnel of the Acquired Health Forward Group Companies, (b) furnish, and shall cause the Health Forward Group Companies to furnish, to CBPO and its Representatives such financial and operating data and other information relating to the Health Forward Group Companies as Buyer or any of its Representatives such Persons may reasonably requestrequest and (c) instruct the Representatives of the Health Forward Group Companies to cooperate with CBPO in its investigation of the Health Forward Group Companies. All access and Any investigation pursuant to this Section 5.2(a) Section shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired business of the Health Forward Group Companies.
(b) Subject to applicable Law, from the date hereof to the Closing Date, CBPO shall (Ca) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shallgive, and shall cause the Acquired CBPO Group Companies toto give, use commercially PWM and its Representatives, upon prior written notice, reasonable efforts access, during normal business hours and under reasonable circumstances, to the offices, properties, books and records of the CBPO Group Companies, (b) furnish, and shall cause the CBPO Group Companies to furnish, to PWM and its employees, counsel, Representatives such financial advisors, auditors and operating data and other authorized information relating to the CBPO Group Companies as such Persons may reasonably request and (c) instruct the Representatives of the CBPO Group Companies to cooperate with Buyer PWM in its investigation of the Acquired CBPO Group Companies. Notwithstanding anything Any investigation pursuant to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company this Section shall be required conducted in such manner as not to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize interfere unreasonably with the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation conduct of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any business of the Acquired CBPO Group Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(bc) Buyer will hold any All information obtained by the parties pursuant to Section 5.2(a) in confidence this Section 5.06 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Share Exchange Agreement (China Biologic Products Holdings, Inc.)
Access to Information. (a) During From the Pre-date hereof until the Closing PeriodDate, Sellers shallSeller will, and shall or will cause the Acquired Companies Participating Subsidiaries to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesgive Buyer Representative, assets, books Buyers and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives representatives access on reasonable notice and at reasonable times to the Books and Records and to the offices and properties of Seller and the Participating Subsidiaries related to the Business, (ii) furnish to Buyer Representative, Buyers and their counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information related to the Business, including (even though they may be excluded from the Books and Records as defined in this Agreement) sales and value-added Tax Returns with respect to the operations of the Business and personal property and use Tax Returns with respect to the Purchased Assets, as they may reasonably request, and shall provide or allow them to make copies of these materials, (iii) instruct the employees, counsel and financial advisors of Seller and the Participating Subsidiaries to cooperate with Buyer Representative and Buyers in its their investigation of the Acquired CompaniesBusiness, and (iv) make the Real Property available on reasonable notice and at reasonable times for surveys and inspections, which may in Buyer Representative's discretion include environmental investigations and the taking of soil and water samples; provided that any investigation pursuant to this Section 5.02 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Seller and the Participating Subsidiaries. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed)foregoing, (x) Buyer Representative and Buyers shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer have access to personnel records of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement Seller or the transactions contemplated herebyParticipating Subsidiaries relating to individual performance or evaluation records, medical histories or other employee personal information the disclosure of which could in Seller's good faith opinion subject Seller or any Participating Subsidiary to risk of liability or action by any third party under the Data Protection Act 1998 or otherwise, and (y) prior to the Closing Date, Buyer Representative and Buyers shall have no right to perform invasive not contact or subsurface investigations approach, either directly or indirectly, any Customer or employee of the properties Business, except as specifically set forth herein, without Seller's prior written consent, which in the case of Transferred Employees shall not be unreasonably withheld or facilities of any Acquired Companydelayed.
(b) Buyer Following the Closing Date, Seller will, and will hold cause the U.K. Subsidiary and the French Holding Company to, give Buyers and their counsel, financial advisors, auditors and other authorized representatives, to the extent reasonably required for the purposes described in clauses (i), (ii), (iii) or (iv) below, access on reasonable notice and at reasonable times to, and permit them to make copies of, Tax Returns (or portions thereof), including sales and value-added Tax Returns, with respect to the operations of the Business and personal property and use Tax Returns with respect to the Purchased Assets, and any other information obtained pursuant related to Section 5.2(athe Business but not included in the Books and Records as they may reasonably request in order to (i) in confidence prepare Tax Returns for the Business for periods from and after the Closing Date, (ii) verify, perform or discharge Assumed Liabilities and Permitted French Subsidiary Liabilities, (iii) participate in accordance with Article XI in the conduct or defense of any third-party Master Agreement - Page 42 indemnification claim, or (iv) otherwise carry out the obligations, or exercise or enjoy the rights, of Buyer Representative and Buyers, or determine any matter relating to their rights or obligations, under this Agreement and the other Operative Documents; provided that access pursuant to this section 5.02(c) shall be exercised in such manner as not to interfere unreasonably with the conduct of business by Seller, the U.K. Subsidiary and the French Holding Company.
(c) All information disclosed to or obtained by any party to the Operative Documents or its counsel, financial advisors, auditors or other authorized representatives as a result of another party's performance of its obligations under this Section 5.02 shall be deemed "Confidential Information" (as defined in the Confidentiality Agreement) under, and shall be subject to, the Confidentiality Agreement.
Appears in 1 contract
Sources: Master Agreement (Ionics Inc)
Access to Information. (a) During the Pre-Closing Period, Sellers shall, Aon shall and shall cause the Acquired Companies toand the Subsidiaries to afford to the officers, use commercially reasonable efforts to provide employees and authorized representatives of Buyer (including independent public accountants and its Representatives with attorneys) reasonable access and shall permit Buyer to make such reasonable inspections and reviews, in each case during normal business hours, upon reasonable advance notice, to the offices, properties, employees, agents and business and financial records (including books, contracts, records, computer files, retrieval programs and similar documentation) of the Companies and the Subsidiaries and shall furnish or cause to be furnished to Buyer or its authorized representatives such additional information concerning the Companies and the Subsidiaries as shall be reasonably requested; provided, however, that: (i) all Aon, the Companies and the Subsidiaries shall not be required to violate any Requirements of Law (including the Acquired Companies’ propertiesHSR Act), assetsCourt Order or obligation of confidentiality to which Aon, books the Companies or any Subsidiary is subject or to waive any privilege which any of them may possess in discharging their obligations pursuant to this Section 7.1 and records, (ii) all senior management Buyer shall not, without the prior written consent of Aon, which consent shall not be unreasonably withheld or delayed, contact or communicate with any vendor, customer, employee, independent contractor or other business partner of the Acquired Companies and (iii) any other information relating solely the Subsidiaries with respect to or in connection with the business, properties, assets, books and records and personnel of the Acquired Companies as transactions contemplated by this Agreement. Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be agrees that: (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) such investigation shall be conducted in such a manner as not to interfere unreasonably with the normal operations of Aon, the Acquired Companies, Companies and the Subsidiaries; (B) all requests by Buyer for access or availability pursuant to this Section 7.1 shall be submitted or directed exclusively to an individual to be designated by Aon; and (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing PeriodAon, the Sellers shall, Companies and the Subsidiaries shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall not be required to provide access any books and records or disclose information where such access reports based thereon that they do not maintain or disclosure wouldprepare in the ordinary course of their business. Notwithstanding the foregoing, the obligations of Aon pursuant to this Section 7.1 shall be subject to the right of Aon to determine, in Sellers’ its reasonable judgmentdiscretion, (1) jeopardize the attorney-client privilege or other immunity or protection from appropriate timing of the disclosure of Sellers information it deems privileged information. Except as set forth in Articles IX and X, no investigation made pursuant to this Section 7.1, and no matter disclosed pursuant to Section 7.2, shall affect any representation or warranty in this Agreement or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect condition to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer parties hereunder to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or consummate the transactions contemplated hereby, and (y) Buyer . The parties shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence act at all times in accordance with the terms and provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aon Corp)
Access to Information. (a) During From the Pre-Closing Perioddate hereof until a date 75 days following the Closing, Sellers upon reasonable notice, Seller shall, and shall cause its employees, auditors and agents (collectively, its "Representatives") and the Acquired Companies Representatives of the Banks to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all afford Representatives of the Acquired Companies’ propertiesBuyer reasonable access, assetsduring normal business hours, to the offices, properties of the Banks and books and recordsrecords of Banks and of Seller (to the extent such books and records relate to Banks), and (ii) all senior management furnish to Representatives of the Acquired Companies Buyer such additional financial and (iii) any operating data and other information relating solely to regarding the businessassets, properties, assets, books goodwill and records and personnel business of the Acquired Companies Banks as Buyer may from time to time reasonably request; PROVIDED, HOWEVER, that such investigation shall not unreasonably interfere with any of the businesses or operations of Seller, Banks or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companysubsidiaries.
(b) Without limiting or modifying any of the terms, provisions, and conditions of a Confidentiality Agreement between the parties dated April 18, 1996 and amended May 2, 1996 ("Confidentiality Agreement"), the terms of which are incorporated herein by reference, each of Buyer and Seller agree that it will hold not, and will cause its Representatives and the Representatives of its subsidiaries not to, use any nonpublic information obtained from the other party in connection with or relating to this Agreement, the investigation leading up to its execution or the transactions contemplated hereby (including, without limitation, by Buyer pursuant to Section 3.2(a)) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Pending consummation of the transactions herein contemplated, each of Buyer and Seller agrees that it will keep confidential, and will cause its and its subsidiaries' Representatives to keep confidential, all nonpublic information and documents so obtained from the other party; PROVIDED, that the obligation to keep such information or documents confidential shall not apply to (i) any information or document that (A) was already in Buyer's or Seller's possession prior to the disclosure thereof by the other party, (B) was then generally known to the public, (C) became known to the public through no fault of Buyer or Seller, as the case may be, or (D) was disclosed to Buyer or Seller, as the case may be, by a third party not bound by an obligation of confidentiality or (ii) disclosure (A) required by law, governmental or regulatory authority, (B) reasonably necessary for seeking and obtaining regulatory approval of the transactions contemplated by this Agreement, and (C) subject to the reasonable consent of Seller, disclosure by Buyer in connection with solicitation and issuance of debt or equity instruments in furtherance of the transactions contemplated by this Agreement. Upon any termination of this Agreement, each party will collect and deliver to the other party all nonpublic documents obtained by it or any of its or its subsidiaries' Representatives then in their possession (other than documents of the type described in the proviso to the preceding sentence) and any copies thereof and destroy or cause to be destroyed all notes, memoranda or other documents in the possession of it or its subsidiaries' Representatives containing or reflecting any nonpublic information obtained from the other party (other than information of the type described in the proviso to the preceding sentence), except to the extent that any such information may be embodied in minutes of the meetings of such party's Board of Directors or in filings, reports or submissions to or with any Governmental Entity. Promptly after any such termination, each of Buyer and Seller shall deliver to the other a certificate signed on its behalf by a senior officer to the effect of its compliance with the agreements of it set forth in the preceding sentence. Any information received by either party under, or prior to the execution of, this Agreement and accorded confidentiality shall not be used by such party to the competitive detriment of the party providing such information. The provisions of this Section 3.2(b) and the Confidentiality Agreement shall survive the termination of this Agreement.
(c) Seller acknowledges Buyer is required to cause an audit of the Banks to be conducted pursuant to Section 5.2(a) Regulation SX Section 210.3-05 and agrees to accommodate Buyer and Buyer's agents in confidence in accordance with the Confidentiality Agreementprovision of information, books and records for the conduct of the required audit.
Appears in 1 contract
Sources: Stock Purchase Agreement (First Interstate Bancsystem of Montana Inc)
Access to Information. (ai) During From the Pre-date hereof until the Closing PeriodDate, Sellers shall, Seller shall and shall cause the Acquired Companies Company and its Subsidiaries to, use commercially (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 efforts notice, to provide Buyer and its Representatives with reasonable access the right to (i) inspect all of the Acquired Companies’ Real Property, properties, assets, premises, books and records, Material Contracts and other documents and data related to the Company and its Subsidiaries; (iib) all senior management 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 Acquired Companies Company, its operations and the operations of any of its Subsidiaries; (iiid) any other information relating solely provide reasonable access to the business, properties, assets, premises, books and records and personnel of the Acquired Companies Company and its Subsidiaries as Buyer necessary for transitional purposes; and (e) provide reasonable access to representatives of the International Union of Operating Engineers and its local 351 and key employees of the Company, its Subsidiaries and its Affiliates. Any investigation, information request or any of its Representatives may reasonably request. All access and investigation transition planning conducted pursuant to this Section 5.2(aSection 4.2(a)(i) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations operation of the Acquired Companies, (C) coordinated through business of the Company, Seller or any of their respective Subsidiaries.
(ii) Buyer’s chief executive officer or designee thereof and (D) conducted right to enter onto the Real Property shall be at Buyer’s sole cost risk and expense. Other than claims of gross negligence or willful misconduct, Buyer waives and Sellers 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 have release, defend, indemnify and hold harmless Seller, the right Company and their respective Affiliates, directors, officers, employees and agents, from and against any losses, claims, Liens or other encumbrances for any injury to have one or more 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 Representatives present at all times during any visitsrespective Representatives. For avoidance of doubt, examinationsthe indemnity set forth in this Section 4.2(a)(ii) shall not be subject to the Indemnification Threshold, discussions the De Minimis Threshold or contacts contemplated by this Section 5.2(a). the Cap Amount.
(iii) During the Pre-period from the date hereof through the Closing PeriodDate, within thirty (30) days after the Sellers shallend of each calendar month beginning with the calendar month ending October 31, and 2011, Seller shall or shall cause the Acquired Companies Company to, use commercially reasonable efforts furnish to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation an unaudited monthly consolidated balance sheet of the Acquired Companies. Notwithstanding anything to Company as of the contrary contained hereinend of the month then ended and related consolidated statements of income, during changes in equity and cash flows for such month and for the Pre-Closing Periodperiod from January 1, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would2011, in Sellers’ reasonable judgmenteach case prepared in accordance with GAAP applied on a basis consistent with prior periods, (1) jeopardize with the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable exception that no notes need be attached to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companystatements.
(biv) As promptly as practicable after the Signing Date, Seller shall or shall cause the Company to furnish to Buyer will hold any information obtained pursuant to Section 5.2(aan 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) in confidence months ended September 30, 2011 and September 30, 2010, prepared in accordance with GAAP applied on a basis consistent with prior periods. If the Confidentiality AgreementClosing 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 and its Affiliates shall provide Buyer Parent and Buyer and their Representatives reasonable access during regular business hours and upon reasonable prior notice to all business records relating to periods prior to the Closing Date if reasonably required by Buyer or the Company in connection with any third party litigation or the preparation of any financial statements that include the financial results of all or part of the Company, its Subsidiaries or their businesses or operations for any period prior to the Closing.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Interim Period, Sellers the REIT shall, and shall cause the Acquired Companies each REIT Subsidiary to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) give the Purchaser and its authorized Representatives reasonable access during normal business hours, and upon at least two Business Days’ advance notice, to all of the Acquired Companies’ properties, assetsfacilities, books personnel and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access REIT and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted each REIT Subsidiary in such a manner as not to interfere unreasonably with the normal operations operation of any business conducted by the REIT or any REIT Subsidiary, (ii) permit such diligence, inspections and investigations of the Acquired Companiesproperties and documents of the REIT and each REIT Subsidiary as the Purchaser may reasonably require in such a manner as not to interfere unreasonably with the operation of any business conducted by the REIT or any REIT Subsidiary, and promptly furnish the Purchaser with such financial and operating data and other documentation and information with respect to the business, properties and personnel of the REIT and each REIT Subsidiary as the Purchaser may reasonably request in order to conduct such diligence, inspections and investigations; and (Ciii) allow the Purchaser and its authorized Representatives reasonable access to communicate directly with or interview any tenants of a REIT Real Property during normal business hours, and upon at least two Business Days’ advance notice; provided that all such access shall be coordinated through and always in the Companypresence of the REIT or its designated Representatives, in accordance with such reasonable procedures as they may establish; and provided further that the REIT shall not be required to (or to cause any REIT Subsidiary to) afford such access or furnish such information to the extent that the REIT believes in good faith that doing so would: (1) result in the loss of attorney-client privilege; (2) violate any obligations of the REIT or any REIT Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the REIT or any REIT Subsidiary is party (for greater certainty, all such communication with a tenant and access to a REIT Real Property shall be subject to the rights of tenants at such REIT Real Property and the terms of such tenant’s chief executive officer REIT Space Lease); or designee thereof and (D3) conducted at Buyer’s sole cost and expensebreach, and Sellers contravene or violate any applicable Law or COVID-19 Measures (provided that the REIT shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where allow for such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would does not result in any the events set out in clauses (1) through (3)). No investigation under this Section 4.2(a) or otherwise shall affect the representations, warranties, covenants or agreements of the outcomes described in REIT or the foregoing clauses (1) conditions to the obligations of the Parties under this Agreement and shall not limit or (2)otherwise affect the rights or remedies available hereunder. All access to a REIT Real Property will be at the Purchaser’s sole risk and expense. Any damage to a REIT Real Property caused by any such tests and inspections will be promptly repaired by the Purchaser. Notwithstanding anything the foregoing, nothing herein shall authorize any subsurface testing, soil boring, taking of roof core samples, drilling or other invasive testing with respect to a REIT Real Property by the contrary contained hereinPurchaser or its representatives unless approved by the REIT in writing, during the Pre-Closing Period, without the prior written consent of Sellers (which consent approval shall not be unreasonably withheld, conditioned or delayed. Prior to accessing any REIT Real Property in accordance with this Section 4.2(a), (x) Buyer the Purchaser shall notprovide, upon written request by the REIT, evidence of appropriate liability insurance coverage for the Purchaser and its representatives and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding be required to maintain such insurance throughout the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyInterim Period.
(b) Buyer Each of the Parties hereto will hold any hold, and will cause its authorized Representatives to hold, in confidence all documents and information obtained concerning the REIT and the REIT Subsidiaries made available to the other Parties in connection with the Arrangement pursuant to Section 5.2(athe terms of the Confidentiality Agreement entered into between the REIT and GIC Real Estate, Inc. dated September 22, 2022 and the Confidentiality Agreement entered into between the REIT and Dream Industrial Real Estate Investment Trust dated September 22, 2022 (collectively, the “Confidentiality Agreements”), as applicable; provided that the Purchaser and its Representatives may disclose Information (as defined in the Confidentiality Agreements), subject to the confidentiality and use restrictions applicable to “Representatives” (as defined in the Confidentiality Agreements) set forth in confidence the Confidentiality Agreements, to (i) the Purchaser’s bona fide prospective and actual third party lenders who are, or are sought to be, engaged to provide debt financing for the Arrangement (and their respective affiliates, agents and advisors), and (ii) potential purchasers of REIT Real Properties; in accordance each case with the Confidentiality AgreementREIT’s prior written consent, which shall not be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Sources: Arrangement Agreement
Access to Information. (a) During the Pre-Closing Period, Sellers shall, Seller shall and shall cause the Acquired Companies Company and WHI-IPA to (and shall cause the Company’s and WHI-IPA’s auditors, third party advisors and their respective representatives to) afford to Buyer and the directors, use commercially officers, employees, agents and other authorized representatives of Buyer (including its independent public accountants and attorneys) reasonable access during normal business hours to all of the offices, properties, books and records (including work papers) and appropriate officers and employees of the Company and WHI-IPA and shall furnish or cause to be furnished to Buyer or its authorized representatives such additional information concerning the Company and WHI-IPA as shall be reasonably requested, including, without limiting the generality of the foregoing, all financial and operating data and other information concerning the affairs of the Company and WHI-IPA available to and in the possession or under the control of the Company and WHI-IPA and/or their auditors as shall be reasonably requested; provided, however, that (a) Seller, the Company and WHI-IPA shall not be required to violate any Requirements of Law, Court Order or obligation of confidentiality to which Seller, the Company or WHI-IPA is subject (provided that Seller, the Company and/or WHI-IPA, as applicable, shall have used reasonable efforts to obtain the consent of such third party to such access or disclosure) or to waive any privilege which any of them may possess in discharging their obligations pursuant to this Section 7.1 (provided that Seller, the Company and its Subsidiaries will nonetheless provide Buyer and its Representatives representatives with appropriate information regarding the factual basis underlying any circumstances that resulted in the preparation of such privileged analyses to the extent permissible without waiver of such privilege), (b) Buyer shall not, without the prior written consent of Seller, contact or communicate with any client or customer party to a Client Agreement with respect to or in connection with the transactions contemplated by this Agreement, (c) Buyer shall not, without providing Seller with prior written notice and a reasonable access opportunity to (i) all participate, contact or communicate with any vendor, employee, independent contractor or other business partner of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of Company or WHI-IPA with respect to or in connection with the Acquired Companies transactions contemplated by this Agreement and (iiid) if the Company’s or WHI-IPA’s auditors or other third-party service providers shall so request in connection with the release of any books, records or other information relating solely (including work papers), Buyer agrees to the business, properties, assets, books and records and personnel of the Acquired Companies execute a customary release as may be requested by such auditors or third-party service providers. Buyer or any of its Representatives may reasonably request. All access and agrees that such investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations of Seller, the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof Company and (D) conducted at Buyer’s sole cost and expense, and Sellers WHI-IPA. The parties shall have the right to have one or more of their Representatives present act at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the terms and provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Catalyst Health Solutions, Inc.)
Access to Information. (a) During From the Pre-date hereof until the Closing PeriodDate or, if earlier, termination of this Agreement, Sellers shallwill (i) give, and shall will cause the Acquired Companies toto give, use commercially reasonable efforts to provide Buyer and Buyer, its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives representatives reasonable access, at reasonable times and during normal business hours, to the offices, properties, books and records of the Acquired Companies and to the books and records of Sellers relating to the Acquired Companies and the Business, (ii) furnish, and cause the Acquired Companies to furnish, to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Acquired Companies and the Business as such Persons may reasonably request, and (iii) instruct the employees, counsel and financial advisors of Sellers and the Acquired Companies to cooperate with Buyer Buyer’s reasonable requests in its investigation of the Acquired Companies. Notwithstanding anything Companies and the Business; provided that any investigation pursuant to this Section 5.2 shall be conducted only upon reasonable notice by Buyer to Sellers and the Acquired Companies in such manner as not to interfere unreasonably with the conduct of the Business; and provided, further, that without the prior written consent of Sellers, Buyer and its Representatives shall not be entitled to any such access, information or documents (a) to the contrary contained hereinextent that access to, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure wouldof, in such information or documents would pursuant to the advice of Sellers’ reasonable judgmentcounsel, (1) jeopardize waive or jeopardize, or reasonably be expected to waive or jeopardize, the attorney-client privilege or other immunity or protection from attorney work-product doctrine, (b) the disclosure of Sellers or any Acquired Company or (2)(x) conflict with which is restricted by any Law or Order applicable to Sellers or any Acquired Company or Seller, (c) the assets, or operation disclosure of the business, of Sellers or any Acquired Company or (y) materially breach which contravenes any Contract (with respect entered into prior to the obligations placed therein on the applicable Acquired Company) date of this Agreement (including any confidentiality agreement to which an Acquired Company Company, a Seller, or an Affiliate thereof is party a party), or by (d) the disclosure of which any of would cause material competitive harm to the Acquired Companies’ assets , Sellers, or properties any Affiliate thereof if the Contemplated Transactions are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with not consummated (after taking into account any reasonable proposals made by Buyer to provide avoid such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2material competitive harm). Notwithstanding anything Buyer is not authorized to and shall not (and shall cause its Affiliates and its and their Representatives not to) contact any customer, supplier, or other material business relation of any Acquired Company prior to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Sellers. Buyer shall notshall, and shall cause its Affiliates and its and their Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding abide by the business, operations, or prospects terms of the Acquired Companies or this Confidentiality Agreement or the transactions contemplated hereby, with respect to such access and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained furnished to it, its Affiliates or its or their Representatives pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreementthis Section 5.2.
Appears in 1 contract
Access to Information. (ai) During the Pre-Closing Period, Sellers upon reasonable prior notice, Seller shall, and shall cause the Acquired Atlas Companies to, use commercially afford the representatives of Parent reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesaccess, assetsduring normal business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Atlas Companies and furnish to the representatives of Parent such additional financial and operating data and other information regarding the business of the Atlas Companies as Buyer Parent or its representatives may from time to time reasonably request for purposes of consummating the transactions and preparing to operate the business of the Atlas Companies following the Closing, in each case Parent agrees to pay the reasonable and documented out-of-pocket expenses associated with such access.
(ii) Notwithstanding anything in this Agreement to the contrary:
(A) in no event shall Seller, the Atlas Companies or their respective Affiliates be obligated to provide any (1) access or information in violation of any applicable Law or Contract, (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 otherwise involving the Equity Interests of Seller or the Company or any information or analysis relating to any such communications, (3) information the disclosure of which could reasonably be expected to jeopardize any applicable privilege (including the attorney-client privilege) available to any of Seller, the Atlas Companies or any of their respective Affiliates relating to such information, (4) information the disclosure of which would cause Seller, any Atlas Company or any of their respective Affiliates to breach a confidentiality obligation to which it is bound or (5) any Tax Return of Seller or its Representatives may Affiliates; provided, that to the extent such access or information is denied pursuant to the foregoing clauses (1), (3) or (4), the Parties shall work together in good faith (at no cost to Seller or the Atlas Companies) to develop substitute arrangements that do not result in a violation of Law or Contract, the loss of an applicable privilege or breach of a confidentiality obligation, as applicable;
(B) the investigation contemplated by Section 6.1(h)(i) shall not unreasonably interfere with any of the businesses, personnel or operations of any of Seller, the Atlas Companies or any of their respective Affiliates;
(C) except as provided for in Section 2.4, the auditors and accountants of any of Parent, Seller, the Atlas Companies 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 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 request. All access and investigation acceptable to such auditors or accountants;
(D) if so requested by Seller, Parent shall enter into a customary joint defense agreement or common interest agreement with Seller, the Atlas Companies or any of their respective Affiliates with respect to any information provided to Parent, or to which Parent gains access, pursuant to this Section 5.2(aSection 6.1(h) shall be or otherwise; and
(AE) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor in no event shall any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation member of the businessBuyer Group be entitled to conduct any invasive or intrusive air, of Sellers surface or any Acquired Company subsurface sampling or testing (ycommonly known as a Phase II investigation) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which at any of the Acquired Companies’ assets or Atlas Company properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanySeller.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. After the Closing:
(a) During Sellers, Parent, Hess and each member of the Pre-Closing Period, affiliated group of corporations filing consolidated United States Income Tax Returns which include the Sellers shall, and (the "Hess Group") shall cause the Acquired Companies to, use commercially grant to Buyer (or its designees) access at all reasonable efforts times to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assetsinformation, books and records relating to the Vessels and personnel Other Assets within the possession of the Acquired Companies as Buyer Hess or any member of its Representatives may reasonably request. All access Hess Group (including without limitation work papers and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere correspondence with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(ataxing authorities). During the Pre-Closing Period, the Sellers shall, and shall cause afford Buyer (or its designees) the Acquired Companies toright (at Buyer's expense) to take extracts therefrom and to make copies thereof, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained hereinextent reasonably necessary to permit Buyer (or its designees) to prepare Tax Returns, during to conduct negotiations with Tax authorities, and to implement the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assetsprovisions of, or operation of to investigate or defend any claims between the businessparties arising under, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyAgreement.
(b) Buyer will hold shall grant to Parent (or its designees) access at all reasonable times to all of the information, books and records relating to the Vessels and Other Assets within the possession of Buyer (including without limitation work papers and correspondence with taxing authorities), and shall afford Parent (or its designees) the right (at Parent's expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to permit Parent (or its designees) to prepare Tax Returns, to conduct negotiations with Tax Authorities, and to implement the provisions of, or to investigate or defend any information obtained pursuant to Section 5.2(a) in confidence in accordance with claims between the Confidentiality parties arising under, this Agreement.
(c) Each of the parties hereto will preserve and retain all schedules, work papers and other documents relating to any Tax Returns of or with respect to the Vessels and Other Assets or to any claims, audits or other proceedings affecting the Vessels and Other Assets until the expiration of the statute of limitations (including extensions) applicable to the taxable period to which such documents relate or until the final determination of any controversy with respect to such taxable period, and until the final determination of any payments that may be required with respect to such taxable period under this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Hornbeck Offshore Services Inc /De/)
Access to Information. (a) During From the Pre-date of this Agreement until the Closing Periodor the date this Agreement is terminated pursuant to Section 7.01, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to Company will (i) give Parent and Purchaser and their respective Representatives reasonable access (during regular business hours upon reasonable notice) to all employees, offices and other facilities and to all books, Contracts, commitments and records (including Tax returns and workpapers) of the Acquired Companies’ properties, assets, books Company and recordsits Subsidiaries as Parent or Purchaser may reasonably request, (ii) all senior management permit Parent and Purchaser and their Respective Representatives to make such inspections of the Acquired Companies Company and its Subsidiaries and their respective properties and assets as Parent or Purchaser may reasonably require, and (iii) any other information relating solely to the business, properties, assets, books cause its officers and records and personnel of the Acquired Companies as Buyer or any those of its Representatives may reasonably request. All access Subsidiaries and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use its commercially reasonable efforts to cause its employees, counsel, Representatives (including legal and accounting) to furnish Parent and Purchaser and their respective Representatives with such financial advisors, auditors and operating data and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any business, properties and personnel of the Acquired Companies’ assets Company and its Subsidiaries as Parent or properties Purchaser may from time to time reasonably request other than (x) information concerning Acquisition Proposals, which shall be governed by Section 5.03, (y) information that may not be disclosed pursuant to a protective order or confidentiality agreement entered into prior to the date of this Agreement and listed on Section 5.04 of the Company Disclosure Schedules (other than confidentiality agreements with parties which were engaged in discussions with the Company regarding possible Acquisition Proposals, which need not be listed), and (z) such portions of documents or materials that are bound; providedsubject to an attorney/client or an attorney work product privilege the provision of which, howeveras determined by the Company’s counsel, thatmay eliminate the privilege pertaining to such portion of such documents, only, in the case of this clause (z), after the Company has endeavored in good faith to enter into arrangements with Parent or Purchaser that would permit the Company to make such instances, Sellers shall inform Buyer of document or information available to Parent or Purchaser without eliminating the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, privilege (in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything No investigation by Parent or Purchaser pursuant to this Section 5.04 or otherwise shall affect or be deemed to modify any representation or warranty made by the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any Prior to the Closing, the Company shall deliver, or cause to be delivered, to Parent and Purchaser as soon as practicable after the end of each month, unaudited consolidated monthly financial statements of the Company and its Subsidiaries.
(c) The information obtained by Parent and Purchaser pursuant to Section 5.2(aSection 5.03 and/or Sections 5.04(a) in confidence in accordance with and (b) shall be subject to the provisions of the Confidentiality Agreement.
(d) Nothing in this Section 5.04 shall require the Company to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company would (i) violate any of its respective obligations with respect to confidentiality, provided that the Company shall use its commercially reasonable efforts to obtain the consent of such third party to such inspection or disclosure, or (ii) result in a violation of applicable Requirements of Law, including federal or state securities Laws or any Antitrust Laws.
Appears in 1 contract
Sources: Asset Purchase Agreement (Renewable Energy Group, Inc.)
Access to Information. (a) During the Pre-Closing Periodperiod from the execution of this Agreement through the earlier of the termination of this Agreement pursuant to its terms and the Closing, Sellers shall, and Seller shall cause the Acquired Companies Companies, the Company Subsidiaries and CBS Canada (solely with respect to the Canadian Parks Business) to, use commercially reasonable efforts subject to provide Buyer restrictions imposed from time to time in good faith upon advice of counsel respecting the provision of privileged communications or competitively sensitive information and its Representatives any applicable confidentiality agreement with any Person, afford representatives of Parent, following notice from Parent to Seller in accordance with this Section 5.2, reasonable access during normal business hours to (i) all properties of the Acquired Companies’ propertiesCompanies and the Company Subsidiaries, assetsand all properties included in the Canadian Park Business, books and will furnish, within a reasonable time, to Parent all information (including extracts and copies of books, records, (ii) all senior contracts, commitments and other documents), and operating and financial data prepared by management in the ordinary course of the Acquired Companies and (iii) any other information relating solely to the business, propertiesif any, assetsconcerning the operations, books and records business, properties and personnel of the Acquired Companies as Buyer or any of Company Subsidiary or the Canadian Parks Business, including access to its Representatives personnel and representatives as Parent may reasonably request. All access request and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted that is in such a manner as not to interfere with the normal operations possession and control of the Acquired Companies, (C) coordinated through any Company Subsidiary or CBS Canada. In conducting any inspection of any properties of the Company’s chief executive officer Companies and the Company Subsidiaries, or designee thereof and (D) conducted at Buyer’s sole cost and expenseany properties included in the Canadian Park Business, and Sellers shall have the right to have one or more neither Parent, Purchaser nor any of their Representatives present at all times during representatives shall (i) contact or have any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets ' employees, agents, or properties are bound; providedrepresentatives, howeveror any Canadian Parks Business employees, that, unless in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without each case Parent obtains the prior written consent of Sellers Seller (which consent shall not be unreasonably withheld, conditioned withheld or delayed), (xii) Buyer unreasonably interfere with the business of the Companies or any Company Subsidiary or the Canadian Parks Business conducted at such property, (iii) damage any property or any portion thereof, or (iv) perform any procedure or investigation (including any environmental investigation or study) without Seller's prior written consent (which consent shall notnot be unreasonably withheld or delayed). Parent shall schedule and coordinate all inspections with Seller and shall give Seller at least three (3) Business Days prior written notice thereof, setting forth the inspection or materials that Parent or its representatives intend to conduct. No investigation made by Purchaser, its employees and representatives shall affect the representations, warranties and agreements made by Seller pursuant to this Agreement, and each such representation, warranty and agreement shall survive any such investigation in accordance with the terms of this Agreement. All information obtained pursuant to this Section 5.2 shall continue to be governed by the Confidentiality Agreement. Seller agrees, and agrees to cause CBS and its Subsidiaries and their respective employees and representatives, from and after the Closing until the third anniversary thereof to keep confidential, not disclose to third parties and not use for its own business benefit all nonpublic information in their possession regarding the Companies, the Company Subsidiaries and the Canadian Park Business; provided, however that CBS and its Subsidiaries and their respective representatives will not be required to maintain as confidential any information that (i) becomes generally available to the public other than as result of disclosure (A) by Seller, its Affiliates or any of their respective representatives or (B) to the Knowledge of Seller, by any other Person in violation of a duty of confidentiality owed to the Companies and/or any of their respective Affiliates, or (ii) is required to be disclosed pursuant to applicable Law or the rules of any securities exchange and prior to such required disclosure, Seller provides reasonable advance notice to the Companies and reasonable assistance in obtaining confidential treatment of such information. At the Closing, Seller shall, and shall cause its Affiliates and its Representatives not to, contact assign to Purchaser, to the extent assignable without consent of the other party thereto, their respective rights under any vendor, supplier or customer of an Acquired Company regarding the business, operationsconfidentiality agreements with Persons other than Purchaser that were entered into in connection with, or prospects relating to, a possible sale of any of the Acquired Companies Companies, the Company Subsidiaries and the Canadian Park Business, their respective businesses or this Agreement or assets, including to the transactions contemplated herebyextent assignable, and (y) Buyer shall have no the right to perform invasive or subsurface investigations enforce all terms of the properties or facilities of any Acquired Companysuch confidentiality agreements.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Cedar Fair L P)
Access to Information. (a) During The Company and its subsidiaries shall afford to Parent and Subsidiary and their respective accountants, counsel, financial advisors and other representatives (the Pre-Closing Period"Parent Representatives") and Parent and its subsidiaries shall afford to the Company and its accountants, Sellers shallcounsel, financial advisors and shall cause other representatives (the Acquired Companies "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, use commercially reasonable efforts Tax Returns) and, during such period, shall furnish promptly to provide Buyer and its Representatives with reasonable access to one another (i) all a copy of each report, schedule and other document filed or received by any of them pursuant to the Acquired Companies’ propertiesrequirements 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, assets, books properties or personnel and records, (ii) all senior management of the Acquired Companies and (iii) any such other information relating solely to the businessconcerning their respective businesses, operations, properties, assets, books and records condition (financial or other), results of operations and personnel of as Parent or Subsidiary or the Acquired Companies Company, as Buyer or any of its Representatives the case may be, shall reasonably request. All access and ; provided that no investigation pursuant to this Section 5.2(a) Section 7.1 shall be (A) conducted during normal business hours upon 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 advance notice best efforts to Sellerscause the Parent Representatives to hold, (B) conducted and the Company and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Company Representatives to hold, in such a manner strict confidence all non-public documents and information furnished to Parent and Subsidiary or to the Company, as not to interfere the case may be, in connection with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts transactions contemplated by this Section 5.2(a). During Agreement, except that (i) Parent, Subsidiary and the Pre-Closing PeriodCompany may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals, the Sellers shallCompany Required Statutory Approvals and the Company Stockholders' Approval and (ii) each of Parent, Subsidiary and the Company may disclose any information that it is required by law or judicial or administrative order to disclose.
(b) 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 shall cause the Acquired Companies tonot retain any copies, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege extracts or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, reproductions in whole or in partpart of such written material. In such event, all documents, memoranda, notes and other writings prepared by Parent or the Company based on the information in such material shall be destroyed (and 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), and such destruction (and reasonable best efforts) shall be certified in writing by an authorized officer supervising such destruction.
(c) The Company shall promptly advise Parent and Parent 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 a manner that would not result in the future may have, any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding material adverse effect on the business, operations, properties, assets, condition (financial or prospects other), or results of operations of the Acquired Companies Company and its subsidiaries or this Agreement or Parent and its subsidiaries, as the transactions contemplated herebycase may be, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companytaken as a whole.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers shallperiod from the date hereof until the Effective Time, and subject to applicable Law and the Confidentiality Agreement, the Company shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of give to Parent, its counsel, lenders (including the Acquired Companies’ Financing Sources), financial advisors, accountants, consultants, agents and other authorized representatives reasonable access during normal business hours, upon reasonable request, to the offices, properties, facilities, assets, books books, records, Service Providers and recordsagents of the Company and its Subsidiaries, (ii) all senior management furnish to Parent, its counsel, lenders (including the Financing Sources), financial advisors, accountants, consultants, agents and other authorized representatives such financial and operating data and other information (including the work papers of the Acquired Companies Company’s independent accountants upon receipt of any required consents from such accountants and subject to the execution of customary access letters) as such Persons may reasonably request and (iii) instruct the Service Providers, counsel, financial advisors, accountants, consultants, agents and other authorized representatives of the Company and its Subsidiaries to cooperate with Parent in its investigation of the Company and its Subsidiaries; provided that any other such access shall be afforded and any such information relating solely shall be furnished at Parent’s expense. Information disclosed by the Company pursuant to this Section 5.02 shall be deemed to be disclosed pursuant to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably requestConfidentiality Agreement. All access and Any investigation pursuant to this Section 5.2(a) Section 5.02 shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired Companiesbusiness of the Company and its Subsidiaries. No information or knowledge obtained in any investigation pursuant to this Section 5.02 shall affect or be deemed to modify any representation or warranty made by the Company hereunder.
(b) The provisions of Section 5.02(a) shall not require and shall not be construed to require the Company to permit any access to or any inspection or review of, or to disclose or otherwise make available, any information that in the reasonable judgment of the Company would reasonably be expected to (i) waive the protection of any attorney-client privilege, (Cii) coordinated through result in the Company’s chief executive officer disclosure of any personal information that would expose the Company to the risk of liability, (iii) violate any obligations of the Company or designee thereof and (D) conducted at Buyer’s sole cost and expenseany of its Subsidiaries with respect to confidentiality to any Third Party or otherwise breach, and Sellers shall have contravene or violate, constitute a default under, or give a Third Party the right to have one terminate or more accelerate an obligation under, any then effective Contract to which the Company or any of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During its Subsidiaries is a party (and the Pre-Closing Period, the Sellers shall, and Company shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives any Contract entered into after the date of this Agreement to cooperate with Buyer in its investigation not contain any obligations of the Acquired Companies. Notwithstanding anything nature referred to the contrary contained hereinin this clause (iii)), during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(xiv) conflict violate any applicable Law. In the event that the Company objects to any request submitted pursuant to and in accordance with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (ySection 5.02(a) materially breach any Contract (with respect to the obligations placed therein and withholds information on the applicable Acquired Company) to which an Acquired Company is party or by which basis of any of the Acquired Companies’ assets foregoing clauses (i), (ii), (iii) or properties are bound; provided(iv), however, that, in such instances, Sellers the Company shall inform Buyer of Parent as to the general nature of the information what is being withheld andand shall use reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not suffer from any of the foregoing impediments, upon Buyer’s request including through the use of reasonable best efforts to implement appropriate and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer mutually agreeable measures to provide permit the disclosure of such information, in whole or in part, information in a manner that would not result in any of to remove the outcomes described in basis for the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyobjection.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the Closing, Sellers shall, and the Company shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books give Parent and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized representatives (collectively, the “Parent Representatives”) reasonable access during normal business hours to the offices, properties, books and records of the Company and the Subsidiaries, including access to each Owned Real Property and Leased Real Property for purposes of conducting Phase I and Phase II environmental site assessments, (ii) furnish to Parent and the Parent Representatives such financial and operating data and other information as such Persons may reasonably request and (iii) instruct its employees, counsel and financial advisors to cooperate with Buyer Parent in its Parent’s investigation of the Acquired Companiesbusiness of the Company and the Subsidiaries; provided that any information provided to Parent or the Parent Representatives pursuant to this Section 8.03(a) shall be subject to the Confidentiality Agreement; and provided further that no investigation pursuant to this Section 8.03(a) or otherwise in connection with this Agreement and the other Transaction Agreements shall affect any representation or warranty given by the Company or any Principal Stockholder hereunder. Any investigation pursuant to this Section 8.03(a) shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and the Subsidiaries. Notwithstanding anything the foregoing, Parent shall not have access to personnel records of the contrary contained hereinCompany and the Subsidiaries relating to individual performance or evaluation records, during medical histories or other information which in the Pre-Closing PeriodCompany’s good faith opinion is sensitive or the disclosure of which could subject the Company or any Subsidiary to risk of liability. From the date hereof until the Closing, neither Sellers nor any Acquired the Company shall be required furnish, and shall cause each Subsidiary to provide access or disclose information where such access or disclosure wouldfurnish, in Sellers’ reasonable judgmentto Parent copies of any notices, (1) jeopardize the attorney-client privilege documents, requests, court papers or other immunity materials received from any governmental agency or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (third party with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyTransactions.
(b) Buyer will hold From the date hereof until the Closing, Parent shall (i) give the Company and its counsel, financial advisors, auditors and other authorized representatives (collectively, the “Company Representatives”) reasonable access during normal business hours to the offices, properties, books and records of Parent and the Parent Subsidiaries, (ii) furnish to the Company and the Company Representatives such financial and operating data and other information as such Persons may reasonably request and (iii) instruct its employees, counsel and financial advisors to cooperate with the Company in the Company’s investigation of the business of Parent and the Parent Subsidiaries; provided that any information obtained provided to the Company or the Company Representatives pursuant to Section 5.2(athis Section 8.03(b) in confidence in accordance with shall be subject to the Confidentiality Agreement; and provided further that no investigation pursuant to this Section 8.03(b) or otherwise in connection with this Agreement and the other Transaction Agreements shall affect any representation or warranty given by Parent hereunder. Any investigation pursuant to this Section 8.03(b) shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Parent and the Parent Subsidiaries. Notwithstanding the foregoing, the Company shall not have access to personnel records of the Parent and the Parent Subsidiaries relating to individual performance or evaluation records, medical histories or other information which in the Parent’s good faith opinion is sensitive or the disclosure of which could subject Parent or any Parent Subsidiary to risk of liability. From the date hereof until the Closing, Parent shall furnish to the Company copies of any notices, documents, requests, court papers or other materials received from any governmental agency or third party with respect to the Transactions.
Appears in 1 contract
Sources: Merger Agreement (Itc Deltacom Inc)
Access to Information. (a) During the Pre-Closing PeriodSubject to Section 4.6(b) and applicable Laws, Sellers shallupon reasonable notice Fording shall arrange to afford Sherritt's officers, employees, counsel, accountants and shall cause the Acquired Companies toother authorized representatives and advisors access, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with from the normal operations date hereof and until the earlier of the Acquired CompaniesEffective Date or the termination of this Agreement, to its and its subsidiaries' properties, books, contracts and records in respect to the Prairie Operations as well as to its financial management personnel without materially interfering with their other responsibilities, and, during such period, Fording shall (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause each of its subsidiaries to) furnish promptly to Sherritt information concerning the Acquired Companies toPrairie Operations as Sherritt may reasonably request, use commercially subject to Fording confidentiality obligations. Subject to Section 4.6(b) and applicable Laws, upon reasonable efforts notice, Sherritt shall arrange to cause its afford Fording's officers, employees, counsel, financial advisors, auditors accountants and other authorized Representatives to cooperate with Buyer in its investigation representatives and advisors access, during normal business hours from the date hereof and until the earlier of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company Effective Date or the assetstermination of this Agreement, or operation of the businessto its and its subsidiaries' properties, of Sellers or any Acquired Company or (y) materially breach any Contract (with books, contracts and records in respect to the obligations placed therein on the applicable Acquired Company) Luscar Contributed Assets as well as to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; providedits financial management personnel without materially interfering with their other responsibilities, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expenseduring such period, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers Sherritt shall (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause each of its Affiliates and its Representatives not subsidiaries to) furnish promptly to Fording information concerning the Luscar Contributed Assets as Fording may reasonably request, contact any vendor, supplier or customer of an Acquired Company regarding subject to Sherritt confidentiality obligations. Any costs shall be at the business, operations, or prospects expense of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyParty seeking access.
(b) Buyer will hold any The Parties acknowledge that, notwithstanding Section 4.6(a), information obtained pursuant may be competitively sensitive and that disclosure thereof shall be limited to Section 5.2(athat which is reasonably necessary for the purpose of (i) preparing submissions or applications in confidence order to obtain the Regulatory Approvals, (ii) fulfilling legal obligations in accordance connection with public disclosure requirements under Law, including in connection with the Further Supplement or a prospectus filing, and (iii) the advancement of the Transaction; and such information shall be provided only to those persons who need to know such information for the foregoing purposes.
(c) Each of Sherritt and Fording acknowledges that information provided to it under Section 4.6(a) above will be non-public and/or proprietary in nature and will be subject to the terms of the Confidentiality Agreements and Section 4.6(a). For greater certainty, the provisions of the Confidentiality Agreements shall survive the termination of this Agreement.
Appears in 1 contract
Sources: Combination Agreement (Ontario Teachers Pension Plan Board)
Access to Information. (a) During Between the Pre-Closing Perioddate hereof and the Effective Time, Sellers shall, the Company will give Purchaser and shall cause the Acquired Companies to, use commercially reasonable efforts its authorized representatives and Persons providing or committed to provide Buyer Purchaser with financing for the Merger and its Representatives with their representatives, reasonable access to (i) all of the Acquired Companies’ propertiesemployees, assetsplants, books offices, warehouses and records, (ii) other facilities and properties and to all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies Company and its Subsidiaries, will permit Purchaser to make such inspections (including any physical inspections or soil or groundwater investigations) as Buyer or any it may reasonably request and will cause the Company's officers and those of its Representatives may reasonably request. All access Subsidiaries to furnish Purchaser with such financial and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors operating data and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on business and properties of the applicable Acquired Company) to which an Acquired Company is party or by which and any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, its Subsidiaries as Purchaser may from time to time reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyrequest.
(b) Buyer Each of the Company and the Purchaser will hold any and will cause its consultants, advisors, representatives, agents and employees, including, without limitation, its auditors, attorneys, financial advisors and other consultants and advisors (including financing sources), to hold in confidence, unless compelled to disclose by judicial or administrative process or, in the written opinion of its legal counsel, by other requirements of law, all documents and information obtained pursuant concerning the other party furnished to Section 5.2(ait in connection with this Agreement (except to the extent that such information can be shown to have been (i) previously known by the disclosing party from sources other than the other party, its directors, officers, representatives or affiliates, (ii) in confidence the public domain through no fault of the disclosing party or its affiliates or (iii) later lawfully acquired by the disclosing party on a non-confidential basis from other sources who are not known by the disclosing party to be bound by a confidentiality agreement or otherwise prohibited from transmitting the information to the disclosing party by a contractual, legal or fiduciary obligation) and will not release or disclose such information to any other Person, except its auditors, attorneys, financial advisors and
(c) Prior to the consummation of the Merger, the Company and its accountants, counsel, agents and other representatives shall cooperate with Purchaser by providing information about the Company which is reasonably necessary for Purchaser and its accountants, counsel, agents and other representatives to prepare the syndication or other materials to be delivered to potential financing sources in accordance connection with the Confidentiality AgreementMerger (the "Financing Documents") and such other documents and information with respect to such documents as may be reasonably requested. Notwithstanding anything in this Agreement to the contrary, Purchaser may disclose, or cause its representatives to disclose, and at the request of Purchaser, the Company shall disclose, information concerning the Company and its Subsidiaries, and their respective businesses, assets and properties, and the Merger in the Financing Documents and to prospective financing sources in connection with the Merger.
(d) Each party hereto agrees to give the other party notice as soon as practicable after any determination by it of any fact or occurrence relating to the other party which it has discovered through the course of its investigation and which represents, or is reasonably likely to represent, either a material breach of any representation, warranty, covenant or agreement of the other party or which has had or is reasonably likely to have a Company Material Adverse Effect or a Purchaser Material Adverse Effect, as applicable.
Appears in 1 contract
Sources: Merger Agreement (Citigroup Inc)
Access to Information. (a) During From the Pre-date hereof until the Closing PeriodDate, Sellers shall, the Seller Parties will (a) afford the Purchaser and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any each of its Representatives may Representatives, all cooperation reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted necessary or customary in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict connection with any Law or Order applicable financing relating to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or 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 (yc) Buyer 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 have no right be reasonably requested, subject to perform invasive the execution by any such prospective lender or subsurface investigations investor of the properties or facilities of any Acquired Companya confidentiality agreement that is reasonably satisfactory to Parent.
(b) Buyer In order (i) to facilitate the resolution of any Claims made against or incurred by the Seller Parties relating to the Transferred Assets or the Assumed Liabilities, (ii) to respond to any inquiry, request or demand from any Governmental Authority relating to the Transferred Assets or the Assumed Liabilities or (iii) to comply with any reporting or filing requirement imposed by any Governmental Authority or by Law relating to the Transferred Assets or the Assumed Liabilities, for a period of seven years after the Closing, the Purchaser will hold 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, (y) upon reasonable notice, afford the officers, employees, agents and representatives of the Seller reasonable access (including the right to make, at the Seller’s expense, photocopies of information not reasonably considered by the Company or the Purchaser to be confidential), during normal business hours, to such Books and Records and (z) furnish the Seller and its Representatives reasonable assistance in connection with any information obtained pursuant Claim (at the Purchaser’s expense); provided that the Company will notify the Seller at least 60 days in advance of destroying any such Books and Records in order to Section 5.2(a) in confidence 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 Confidentiality AgreementTransferred Assets or the Assumed Liabilities relating to periods prior to the Closing, but only to the extent required by applicable Law.
(c) In order to (i) facilitate the resolution of any Claims made against or incurred by the Purchaser or the Company relating to the Transferred Assets or the Assumed Liabilities, (ii) 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 Transferred Assets or the Assumed Liabilities (including with respect to a public offering of securities by the Company or any of its Affiliates), for a period of seven years after the Closing the Seller Parties will (x) retain the Books and Records relating to the 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 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 Seller’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), (b) and (c) shall not apply with respect to Tax matters and the provisions of Section 7.09 shall apply.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Boston Scientific Corp)
Access to Information. (a) During The Seller and the Pre-Closing Period, Sellers shallCompanies shall permit representatives of the Parent to have full access (at all reasonable times, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner so as not to interfere with the normal business operations of the Acquired Companies) to all premises, properties, financial and accounting records, contracts, other records and documents, and personnel, of or pertaining to the Seller and the Companies.
(b) Each of the Parent and the Acquisition Subsidiaries (i) shall treat and hold as confidential any Company Confidential Information (as defined below), (Cii) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, not use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets Company Confidential Information except in connection with this Agreement, and (iii) if this Agreement is terminated for any reason whatsoever, shall return to each Company all tangible embodiments (and all copies) thereof which are in its possession. For purposes of this Agreement, “Company Confidential Information” means any information of the Seller and any Company that is furnished to the Parent or properties are boundany Acquisition Subsidiary by the Seller of the Companies in connection with this Agreement; provided, however, thatthat it shall not include any information (A) which, in such instancesat the time of disclosure, Sellers shall inform Buyer is available publicly other than as a result of disclosure by the Parent, the Acquisition Subsidiaries or their respective directors, officers, employees, agents or advisors, (B) which, after disclosure, becomes available publicly through no fault of the general nature Parent or any Acquisition Subsidiary or their respective directors, officers, employees, agents or advisors, (C) which the Parent or any Parent Subsidiary knew or to which the Parent or the Acquisition Subsidiaries had access prior to disclosure, provided that the source of such information is not known by the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer Parent or the Parent Subsidiary to provide such information, in whole or in part, in be bound by a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything confidentiality obligation to the contrary contained herein, during Seller or the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operationsCompanies, or prospects (D) which the Parent or any Parent Subsidiary rightfully obtains from a source other than the Companies provided that the source of such information is not known by the Acquired Companies or this Agreement Parent or the transactions contemplated hereby, and (y) Buyer shall have no right Parent Subsidiary to perform invasive or subsurface investigations of the properties or facilities of be bound by a confidentiality obligation to any Acquired Company.
(b) Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From the date hereof until the earlier of the Effective Time and the date of termination of this Agreement, the Company shall (a) During the Pre-Closing Period, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to (i) all each of the Acquired Companies’ Company Subsidiaries to) afford to officers, employees, counsel, investment bankers, accountants and other authorized representatives (“Representatives”) of Parent full access, in a manner not disruptive to the operations of the business of the Company and the Company Subsidiaries, during normal business hours and upon reasonable notice, to the personnel, properties, assetsoffices, facilities, books and records, (ii) all senior management customers, suppliers and Affiliates of the Acquired Companies Company and the Company Subsidiaries and, during such period, the Company shall (iiiand shall cause each of its Subsidiaries to) any other furnish promptly to such Representatives all information relating solely to concerning the business, properties, assets, books and records properties and personnel of the Acquired Companies Company and its Subsidiaries in each case as Buyer may reasonably be requested including, for the avoidance of doubt, (i) internal financial statements and documentation regarding internal controls, (ii) Tax Returns, Tax elections and all other records and workpapers relating to Taxes, (iii) a schedule of any deferred intercompany gain with respect to transactions to which the Company or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to SellersSubsidiaries has been a party, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (Div) conducted at Buyer’s sole cost and expense, and Sellers shall have the right receipts from any Taxes paid to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are boundforeign Taxing Authority; provided, however, thatthat nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent if such disclosure would, in such instances, Sellers shall inform Buyer the reasonable judgment of the general nature Company, (i) cause significant competitive harm to the Company or its Subsidiaries if the Transactions were not consummated, (ii) violate applicable Law or request or requirement of any Governmental Entity or the information being withheld andprovisions of any agreement to which the Company or any of its Subsidiaries is a party or (iii) jeopardize any attorney-client or other legal privilege due to the unavailability of common interest or other doctrines for preserving the privilege; provided further, upon Buyer’s request and however, that nothing herein shall authorize Parent or its Representatives to undertake any further environmental investigations or sampling at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in properties owned, operated or leased by the foregoing clauses (1) Company or (2)its Subsidiaries. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall Parent agrees that it will not, and shall will cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold use any information obtained pursuant to Section 5.2(a) this Section 6.2 for any competitive or other purpose unrelated to the consummation of the Transactions. No access granted, or information provided, pursuant to this Section 6.2 shall affect or be deemed to qualify, modify or limit any representations or warranties made by the Company in confidence in accordance this Agreement. The Company for itself and for its Subsidiaries shall retain or cause to be retained such information relating to the Company and its Subsidiaries as is reasonably necessary for the preparation and filing of any Tax Return, claim for refund or other filings relating to Tax matters, for the preparation for any Tax audit or any Tax protest, for the prosecution or defense of any suit or other proceeding relating to Tax matters, including the retention of records, powers of attorney or other materials relating to Taxes of the Company and the Company Subsidiaries. The Confidentiality Agreement shall apply with respect to information furnished hereunder by the Confidentiality AgreementCompany, the Company Subsidiaries and their respective Representatives.
Appears in 1 contract
Access to Information. (a) During From the Pre-date of this Agreement until the Closing Periodor the earlier termination of this Agreement pursuant to Article VIII, Sellers shall, and the Company shall cause the Acquired Companies to, use commercially reasonable efforts to provide Buyer (a) afford Acquiror and its Representatives with reasonable access to (i) and the right to reasonably inspect all of the Acquired Companies’ properties, assets, premises, books and records, (ii) all senior management of the Acquired Companies Contracts and (iii) any other information relating solely documents and data related to the businessCompany and its Subsidiaries; (b) furnish Acquiror and its Representatives with such financial, properties, assets, books operating and records other data and personnel of information related to the Acquired Companies Company and its Subsidiaries as Buyer Acquiror or any of its Representatives may reasonably request; and (c) instruct the Representatives of the Company to cooperate with Acquiror in its investigation of the Company and its Subsidiaries. All Any investigation or access and investigation afforded pursuant to this Section 5.2(aSection 6.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere unreasonably with the normal operations conduct of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation business of the Acquired Companies. Notwithstanding anything Company and its Subsidiaries or violate the terms of any Contract and to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the preserve all attorney-client privilege client, work product, or other immunity legal or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (similar privilege with respect to thereto. No investigation by Acquiror or other information received by Acquiror shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired CompanyAgreement.
(b) Buyer will hold any information obtained From the date of this Agreement until the Closing or the earlier termination of this Agreement pursuant to Section 5.2(aArticle VIII, Acquiror shall (a) afford the Company and its Representatives reasonable access to and the right to reasonably inspect all of the properties, assets, premises, books and records, Contracts and other documents and data related to Acquiror and its Subsidiaries; (b) furnish the Company and its Representatives with such financial, operating and other data and information related to Acquiror and its Subsidiaries as the Company or any of its Representatives may reasonably request; and (c) instruct the Representatives of Acquiror to cooperate with the Company in confidence its investigation of Acquiror and its Subsidiaries. Any investigation or access afforded pursuant to this Section 6.2(b) shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of Acquiror and its Subsidiaries or violate the terms of any Contract and to preserve all attorney-client, work product, or other legal or similar privilege with respect thereto. No investigation by the Company or other information received by the Company shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Acquiror in this Agreement.
(c) Acquiror and the Company shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations under the Confidentiality Agreement, effective as of August 26, 2020, between Acquiror and the Company’s wholly-owned Subsidiary, Envirotech Drive Systems Incorporated, which shall survive the termination of this Agreement in accordance with the Confidentiality Agreementterms set forth therein.
Appears in 1 contract
Sources: Merger Agreement (Adomani, Inc.)
Access to Information. (a) During From the Pre-Closing Perioddate hereof until the earlier of the Expiry Time and the time this Agreement is terminated, Sellers shalland subject to the existing confidentiality agreement between the Company and the Offeror dated March 16, 2007, as amended on October 1 and October 3, 2007 (the "Confidentiality Agreement"), the Company shall (and shall cause its Subsidiaries to) afford the Acquired Companies to, use commercially reasonable efforts to provide Buyer Offeror and its Representatives with reasonable access to (i) all of the Acquired Companies’ propertiesinformation, assetsconfidential or otherwise, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on Company and its Subsidiaries and their respective businesses, assets and properties, including books, contracts and records as well as access to management personnel and employees and access to the properties of the Company and its Subsidiaries, subject to compliance with applicable Acquired Company) Laws and to the Company obtaining any consents or waivers with respect to access required under any applicable agreements with third parties in effect as at the date of this Agreement, subject to such access not interfering with the ordinary conduct of the business of the Company and its Subsidiaries. The Offeror and its Representatives will not contact any Government Authority (other than Government Authorities with registries or information available by request from members of the public), any employees of the Company or its Subsidiaries, any supplier of the Company or its Subsidiaries, or any third party who is a party to any agreement, arrangement or understanding under which an Acquired the Company is party or by which its Subsidiaries (or any of the Acquired Companies’ assets their assets) is bound or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Periodaffected, without the prior written consent of Sellers the Company (which consent shall not to be unreasonably withheld, conditioned or delayed), and the Company shall (x) Buyer shall not, and shall cause its Affiliates Subsidiaries to) furnish promptly to the Offeror all information concerning its business, assets, properties and personnel as the Offeror may reasonably request.
(b) Notwithstanding the foregoing, except as expressly provided for herein, the Company shall not be obligated to make available to the Offeror any of the Company's management or board of directors' materials relating to the assessment or evaluation of the transactions contemplated hereby or any alternative transaction (including any Acquisition Proposal proposed by any other person) nor any information supplied by any of its Representatives not to, contact in connection therewith or any vendor, supplier or customer confidentiality agreement made between the Company and any other person prior to the date hereof in respect of an Acquired Company regarding any alternative transaction.
(c) Without limiting the business, operations, or prospects generality of the Acquired Companies provisions of the Confidentiality Agreement and subject to Section 3.4(d), the parties acknowledge that all information provided under Section 2.5, Section 3.4(a) or otherwise pursuant to this Agreement or in connection with the transactions contemplated hereby, is subject to the Confidentiality Agreement, which shall remain in full force and (y) Buyer shall have no right to perform invasive effect, notwithstanding any other provision of this Agreement or subsurface investigations any termination of this Agreement. If any provision of this Agreement conflicts or is inconsistent with any provision of the properties Confidentiality Agreement, the provisions of this Agreement will supersede those of the Confidentiality Agreement but only to the extent of the conflict or facilities inconsistency and all other provisions of any Acquired Companythe Confidentiality Agreement will remain in full force and effect.
(bd) Buyer will hold any information obtained pursuant to Section 5.2(aThe Company hereby waives the prohibitions in Section 2(g) (as amended), Section 2(i) and Section 2(k) of the Confidentiality Agreement in confidence respect of: (i) the transactions contemplated hereby; (ii) market purchases of Shares during the Offer not in excess of 5% of the total outstanding Shares, in accordance with Applicable Laws; (iii) discussions undertaken with any Government Authority in respect of the Confidentiality Agreementtransactions contemplated hereby, which shall be undertaken in compliance with the review and concurrence obligations set out in Section 5.2(a); (iv) discussions, together with the Company, with third parties in respect of the possible disposition of assets of the Company or its Subsidiaries following or contemporaneous with the completion of any of the transactions contemplated hereby; or (v) communications regarding the entering into of any support, lock-up or similar agreement with any Shareholders in respect of the transactions contemplated hereby.
Appears in 1 contract
Access to Information. (a) During The Company and its subsidiaries shall afford to Parent and Subsidiary and their respective accountants, counsel, financial advisors and other representatives (the Pre-Closing Period"Parent Representatives") and Parent and its subsidiaries shall afford to the Company and its accountants, Sellers shallcounsel, financial advisors and shall cause other representatives (the Acquired Companies "Company Representatives") full access during normal business hours throughout the period after the date hereof and prior to the Effective Time to all of their respective properties, books, contracts, commitments and records (including, but not limited to, use commercially reasonable efforts Tax Returns) and, during such period, shall furnish promptly to provide Buyer and its Representatives with reasonable access to one another (i) all a copy of each report, schedule and other document filed or received by any of them pursuant to the Acquired Companies’ propertiesrequirements 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, assetsproperties or personnel, books and records, (ii) all senior management of the Acquired Companies and (iii) any such other information relating solely to the businessconcerning their respective businesses, operations, properties, assets, books and records condition (financial or other) results of operations and personnel of as Parent or Subsidiary or the Acquired Companies Company, as Buyer or any of its Representatives the case may be, shall reasonably request. All access and ; provided that no investigation pursuant to this Section 5.2(a) Section 7.1 shall be (A) conducted during normal business hours upon 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 advance notice best efforts to Sellerscause the Parent Representatives to hold, (B) conducted and the Company and its subsidiaries shall hold and shall use their reasonable best efforts to cause the Company Representatives to hold, in such a manner strict confidence all non-public documents and information furnished to Parent and Subsidiary or to the Company, as not to interfere the case may be, in connection with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts transactions contemplated by this Section 5.2(a). During Agreement in accordance with the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation terms of the Acquired Companies. Notwithstanding anything to Confidentiality Agreement dated the contrary contained hereindate hereof, during which is incorporated herein by reference and made a part hereof (the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) or (2"Confidentiality Agreement"). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Buyer will hold any information obtained pursuant In the event that this Agreement is terminated in accordance with its terms, each party shall promptly redeliver or destroy, as applicable, to Section 5.2(a) the other all non-public written material provided in confidence connection with the transactions contemplated herein in accordance with the terms of the Confidentiality Agreement.
(c) The Company shall promptly advise Parent and Parent 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, a Company Material Adverse Effect or a Parent Material Adverse Effect, as the case may be.
Appears in 1 contract
Sources: Merger Agreement (C Cor Net Corp)
Access to Information. (ai) During Prior to the Pre-Closing PeriodClosing, Sellers shallsubject to the restrictions set forth in the Confidentiality Agreement, and to the extent permitted by applicable Law, the Company shall cause the Acquired Companies to, use commercially reasonable efforts to provide permit Buyer and its Representatives with representatives after the date of execution of this Agreement to have reasonable access to (i) all of the Acquired Companies’ properties44 access, assetsduring regular business hours, books and records, (ii) all senior management of the Acquired Companies and (iii) any other information relating solely to the business, properties, assets, books and records and personnel in its possession or control relating to the Company as Buyer may reasonably request; provided, that Buyer shall not be entitled to any such access to any Owned Real Property for the purposes of conducting any environmental audit or assessment without the prior written consent of the Acquired Companies as Company and Sellers and in no event shall Buyer be allowed to conduct any intrusive soil or groundwater sampling or investigation. All information provided or obtained pursuant to the foregoing shall be held by Buyer in accordance with and subject to the terms of the Confidentiality Agreement. Buyer hereby agrees that the provisions of the Confidentiality Agreement will apply to any properties, books, records, data, documents and other information relating to the Company and Sellers provided to Buyer or its Affiliates or any of its Representatives may reasonably request. All access and investigation their respective advisers or employees pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer or designee thereof and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to cause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired CompaniesAgreement. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Periodin this Agreement, neither Sellers nor any Acquired the Company shall be required to provide access or disclose any information where to Buyer if such access or disclosure would, in Sellers’ sole discretion (A) cause significant competitive harm to Sellers, the Company and their respective businesses if the transactions contemplated by this Agreement are not consummated, (B) jeopardize any attorney-client or other privilege or (C) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement.
(ii) For a period of three years following the Closing Date or, in the case of Taxes, until the expiration of the relevant statute of limitations:
(A) Buyer, agrees to use reasonable judgmentefforts to provide, or cause to be provided, to Sellers, as soon as reasonably practicable after written request therefor, any information in the possession or under the control of the Buyer which Sellers reasonably need (1) jeopardize the attorney-client privilege to prepare Sellers’ annual and interim financial statements, (2) to comply with reporting, disclosure, filing or other immunity or protection from disclosure of requirements imposed on Sellers (including under applicable securities and Tax Laws) by a Governmental Entity having jurisdiction over Sellers or (3) for use in any Acquired Company other judicial, regulatory, administrative or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at B▇▇▇▇’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole other proceeding or in partorder to satisfy audit, in a manner that would not result in any of the outcomes described in the foregoing clauses (1) accounting, claims, regulatory, litigation or (2). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned other similar legal or delayed), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Companyregulatory requirements.
(bB) Without limiting the generality of the foregoing, the Buyer will hold any Group shall use reasonable efforts to cooperate with Sellers’ information obtained pursuant requests to Section 5.2(aenable (1) in confidence Sellers to meet their respective timetables for dissemination of its earnings releases, financial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, respectively, of Regulation S-K and (2) Sellers’ respective auditors to timely complete their review of the Confidentiality Agreementquarterly financial statements and audit of the annual financial statements, including, to the extent applicable, the audit of Sellers’ internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the Sarbanes Oxley Act of 2002 and the Securities and Exchange Commission’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder. Buyer acknowledges that Holdings is a “large accelerated filer” and MGP is an 45 “accelerated filer,” each as defined in Rule 12b-2(b) promulgated under the Securities Exchange Act of 1934, as amended.
(C) The Buyer Group agrees to use commercially reasonable efforts to retain all such information in its possession or control in accordance with its ordinary course practices.
Appears in 1 contract