Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (Pc Tel Inc), Agreement and Plan of Merger (Pc Tel Inc), Agreement and Plan of Merger (Pc Tel Inc)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time(a) Upon reasonable notice, the Company shall, and shall cause each Company Subsidiary to, afford to the officers, directors, employees, accountants, counsel, financial advisors, consultants, Financing Sources and other advisors or representatives (acollectively, “Representatives”) provide to of Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in to all of the Company’s and the Company Subsidiaries’ properties, books, records, contracts, commitments and personnel, but only to the extent that such a manner as access does not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) operations of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the businessCompany shall, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects shall cause each of the Company Subsidiaries to, furnish as promptly as practicable to Parent (i) a copy of each material report, schedule and other document filed, furnished, published, announced or received by it during such period pursuant to the requirements of federal or state securities Laws or a Governmental Entity and (ii) all other information with respect to the Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that none of Parent, any Parent Subsidiary or any of their respective Representatives shall conduct any environmental sampling or surface or subsurface assessment or investigation; and provided further that the Company may withhold any document or information (i) to the extent that such document or information is subject to the terms of a confidentiality agreement with a third party (provided that the Company shall not be required use its reasonable best efforts to obtain waivers under such agreements or implement requisite procedures to enable reasonable access without violating such agreements), (or to cause any Company Subsidiary toii) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so disclosure thereof would: (i) , in the Company’s good faith opinion after consultation with legal counsel, result in the loss of attorney-client privilege with respect to such document or information (provided that the Company shall use its commercially reasonable best efforts to allow for put in place an arrangement to permit such access or disclosure in a manner that does not result in a without loss of attorney-client privilege); , (iiiii) violate any confidentiality obligations of to the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party extent required by applicable Law (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure provision of reasonable access without violating such information); (iiiLaw) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from extent that the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiariesdisclosure thereof would, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiariesreasonable discretion, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained result in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementsignificant antitrust risk.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Terra Industries Inc), Agreement and Plan of Merger (CF Industries Holdings, Inc.), Agreement and Plan of Merger (CF Industries Holdings, Inc.)
Access to Information. From the date of this Agreement hereof until the earlier Effective Time and subject to occur of the valid termination of this Agreement in accordance with Article VII applicable Law and the Effective TimeConfidentiality Agreement dated as of July 24, 2000 between the Company and Parent (the "Confidentiality Agreement"), the Company shallshall (i) give Parent, its counsel, financial advisors, auditors, lenders and other authorized representatives reasonable access to the offices, properties, books and records of the Company, (ii) furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial, operating data and other information as such Persons may reasonably request, (iii) instruct its employees, counsel, financial advisors, auditors and other authorized representatives of the Company to cooperate with Parent in its investigation of the Company and (iv) promptly advise Parent orally and in writing of any fact or circumstances reasonably likely to have a Material Adverse Effect on the Company or to cause a condition contained in Article 9 not to be satisfied. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and Spinco and its Subsidiaries. No information or knowledge obtained by Parent in any investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by the Company hereunder. Without limiting the generality of the foregoing, as soon as reasonably practicable after the date hereof, the Company shall provide to Parent a copy of the most recent statement of withdrawal liability that it or any of its Affiliates has obtained from each Employee Plan that is a Multiemployer Plan and, to the extent that such a statement has not yet been obtained for any such Employee Plan, or to the extent such a statement has been obtained but reflects withdrawal liability as of a date earlier than July 1, 2000 with respect to any such Employee Plan, the Company shall use, and shall cause each Company Subsidiary its Affiliates to (a) provide to Parent and Merger Sub and their respective Representatives use, its reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of a current withdrawal liability statement from such third party Employee Plan and provide it to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Restructuring and Merger (Keebler Foods Co), Agreement and Plan of Restructuring and Merger (Kellogg Co), Agreement and Plan of Restructuring and Merger (Flowers Industries Inc /Ga)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeClosing, the Company Sellers shall, and shall cause each the Company Subsidiary to to: (a) provide afford Buyer and its Representatives access to Parent and Merger Sub the right to inspect all of the Company’s Real Property, properties, assets, premises, books and their respective records, contracts, agreements and other documents and data related to the Company Parties; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Company Parties as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Sellers and the Company to cooperate fully with Buyer in its investigation of the Company; provided, however, that any such investigation shall be conducted with reasonable access during normal business hours advance notice to the Sellers’ Representative, under the supervision of Sellers’ designated personnel and in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities normal operations of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests by Buyer for information made access pursuant to this Section 5.06 7.2 shall be submitted or directed exclusively to the person Sellers’ Representative or persons designated by such other individuals as the Company. During any visit Sellers may designate in writing from time to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedurestime. Notwithstanding anything to the contrary contained in this Section 5.06Agreement, from neither the Sellers nor the Company Parties shall be required to disclose any information to Buyer if such disclosure would be reasonably likely to: (i) cause significant competitive harm to the Company Parties or the Company Business if the transactions contemplated by this Agreement are not consummated, provided that disclosure of the Transaction and the Company Business after Closing shall be deemed not to cause competitive harm; (ii) jeopardize attorney-client privilege; or (iii) contravene any applicable Law, fiduciary duty or Contract entered into prior to the date of this Agreement until Agreement. Notwithstanding the earlier foregoing, prior to occur the Closing, Buyer shall not contact any suppliers to, or customers of, the Company, and Buyer shall have no right to perform invasive or subsurface investigations of any of the valid termination of this Agreement Real Property, in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conducteach case, without the prior written consent of the Company (Sellers, which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Hi-Crush Partners LP), Membership Interest Purchase Agreement
Access to Information. From (a) During the date period from the execution of this Agreement until through the earlier to occur of the valid termination of this Agreement in accordance with Article VII pursuant to its terms and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries to, subject to reasonable restrictions imposed from time to time upon advice of counsel respecting the provision of privileged communications or any applicable confidentiality agreement with any Person (provided that the Company shall use its reasonable best efforts to obtain waivers under such agreements or implement requisite procedures to enable the provision of reasonable access without violating such agreement), afford representatives of Parent and its financing sources reasonable access during normal business hours to officers, employees, agents, and their respective representatives toof the Company and its Subsidiaries and to all properties of the Company and its Subsidiaries, hold and will furnish, within a reasonable time, to Parent all information provided (including extracts and copies of books, records, contracts and other documents, including a copy of each report, schedule, registration statement and other document filed or furnished received by it during such period pursuant to the requirements of federal securities laws) concerning the operations and business of the Company or any of its Subsidiaries, as Parent may reasonably request and (ii) shall, with respect to fiscal months ending after the date of this Section 5.06 confidential in accordance Agreement, furnish to Parent promptly, unaudited monthly consolidated balance sheets of the Company and its Subsidiaries for each fiscal month then ended and related consolidated statements of earnings and cash flows (which the Company will use reasonable best efforts to furnish within fifteen days after the end of each fiscal month) as well as an operating plan for each fiscal month. In conducting any inspection of any properties of the Company and its Subsidiaries, Parent and its representatives shall not (i) interfere with the terms business of the Confidentiality AgreementCompany or any of its Subsidiaries conducted at such property, or (ii) damage any property or any portion thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Freescale Semiconductor Inc), Agreement and Plan of Merger (Freescale Semiconductor Inc), Agreement and Plan of Merger (Freescale Semiconductor Inc)
Access to Information. From (a) Subject to applicable Law, between the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII hereof and the Effective Time, the Company shall, and shall cause each T will give Company Subsidiary to (a) provide to Parent Y and Merger Sub and their respective Representatives authorized representatives (including counsel, financial advisors and auditors) reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryall employees, to the officers, employees, agents, properties, offices contracts and other facilities of the Company and the Company Subsidiaries properties and to the all books and records (including Tax Returns of Company T and supporting documentation) of the Company and the Company its Subsidiaries, will permit Company Y and (b) Merger Sub to make such inspections as Company Y and Merger Sub may reasonably require and will cause Company T’s officers and those of its Subsidiaries to furnish promptly Company Y and Merger Sub with such financial and operating data and other information concerning with respect to the business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers personnel of Company T and other aspects of the Company and Company its Subsidiaries as Parent Company Y or its Representatives Merger Sub may from time to time reasonably request; providedprovided that no investigation pursuant to this Section 5.3(a) shall affect or be deemed to modify any of the representations or warranties made by Company T. For the avoidance of doubt, however, that the none of Company T or any of its Subsidiaries shall not be required to (provide access to or to cause any Company Subsidiary to) afford disclose information where such access or furnish such information to the extent that the Company is advised by counsel that doing so would: disclosure would (i) result in waive the loss of attorney-client privilege of Company T or any of its Subsidiaries (provided that the Company T shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner to the maximum extent that does not result in a loss of attorney-client privilege); , (ii) violate contravene any confidentiality obligations applicable Law or requirements of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party Governmental Entities (provided that the Company T shall use its commercially reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such law or requirement) or (iii) breach the terms of a confidentiality agreement with a third party entered into prior to the date hereof (provided that Company T shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Lawdisclosure). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact If any customer, partner, vendor, supplier or employee of the information is withheld by Company T or any of its Subsidiaries pursuant to the proviso to the preceding sentence, Company SubsidiariesT shall inform Company Y as to the general nature of what, in each case outside and pursuant to which clause of the ordinary course of business and proviso in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiariespreceding sentence such information, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably is being withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Tudou Holdings LTD), Agreement and Plan of Merger (Youku Inc.), Agreement and Plan of Merger (Tudou Holdings LTD)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid termination of Effective Time or the date on which this Agreement is terminated in accordance with Article VII and the Effective Timeits terms, the Company shall, and shall cause each Company Subsidiary of its Subsidiaries to, afford to Parent, and to Parent’s officers, employees, accountants, counsel, financial advisors, financing sources, environmental consultants and other representatives (a) provide the foregoing, with respect to Parent and Merger Sub and their respective Representatives any Person, its “Representatives”), reasonable access during normal business hours in and upon reasonable prior notice from Parent during the period prior to the Effective Time to their respective properties (including Phase I environmental assessments), books, contracts, commitments, personnel and records and, during such a manner as not to unreasonably interfere with the operation of any business conducted by period, the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold furnish promptly to Parent (a) a copy of each material report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of supranational, national, federal, state, local or municipal (whether domestic or foreign) Law and (b) all other information provided or furnished concerning its business, properties and personnel as Parent may reasonably request. All information exchanged pursuant to this Section 5.06 confidential 6.3 shall be subject to the Nondisclosure Agreement. Notwithstanding the foregoing, the Company shall not be required to provide access to, or cause its Subsidiaries to provide access to, any information or documents which would, in accordance the reasonable judgment of the Company, (i) constitute a waiver of the attorney-client or other privilege held by the Company or any of its Subsidiaries, (ii) otherwise violate any applicable Laws or (iii) breach any agreement of the Company or any of its Subsidiaries with any third-party (provided that the Company has used commercially reasonable efforts to find alternative means, not constituting a breach of any such agreement with a third party, to provide the access or information contemplated by this Section 6.3). Parent and the Company shall cooperate and consult with each other to develop announcement materials and undertake discussions with customers, partners and prime contractors of Material Company Contracts to which the Company or any of its Subsidiaries is a subcontractor, and make appropriate management available at presentations related to the transactions contemplated by this Agreement as reasonably requested by the other party, in each case, in a manner that would not unreasonably interfere with the terms conduct of the Confidentiality Agreementbusiness of the Company and its Subsidiaries.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Flir Systems Inc), Agreement and Plan of Merger (Flir Systems Inc), Agreement and Plan of Merger (Icx Technologies Inc)
Access to Information. From the date of this Agreement until through the earlier to occur of the valid termination of Closing and such time as this Agreement is terminated in accordance with Article VII VIII, Seller shall cause the Company and the Effective TimeCompany Subsidiaries to provide, solely in furtherance of the Company shalltransactions contemplated by this Agreement and the other Transaction Agreements, Buyer and its Representatives with, upon reasonable advance notice and during regular business hours, reasonable access to the offices, properties, assets, books, Contracts, insurance policies and business, regulatory, financial and other records, and management and Representatives of the Company, as Buyer may request from time to time; provided that any such access pursuant to this Section 5.2 shall cause each Company Subsidiary to (a) provide to Parent be conducted in accordance with Applicable Law, under the supervision of Seller’s personnel and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as to not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) normal operations of the Company and the Company Subsidiaries. The foregoing notwithstanding, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company Seller shall not be required to (cause the Company or the Company Subsidiaries to cause any Company Subsidiary to) afford provide such access if it would unreasonably disrupt the operations of Seller or furnish such information to the extent that its Subsidiaries (including the Company is advised by counsel that doing so and the Company Subsidiaries), would cause a violation of any Contract, would: (i) , in the reasonable judgment of Seller or the Company, result in the a loss of attorney-client privilege (provided that or trade secret protection or would constitute a violation of any Applicable Law, and in any such event, the Company parties shall use its commercially reasonable efforts to allow for such access or disclosure make appropriate substitute arrangements in a manner that does not result in a such loss or violation. In addition, to the extent that Seller undertake and completes an appraisal of attorney-client privilege); (ii) violate any confidentiality obligations the assets of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that Subsidiaries prior to the Company Closing, Seller shall use its commercially reasonable efforts to obtain the required consent promptly deliver a copy of such third party appraisal to Buyer and provide Buyer with access to such access or disclosure reasonable and implement appropriate procedures to enable the disclosure of supporting information underlying such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breachappraisal, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrarythird-party provider involved in its preparation, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall as may be directed to the person or persons designated reasonably requested by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementBuyer.
Appears in 3 contracts
Samples: Stock Purchase Agreement (SAFG Retirement Services, Inc.), Stock Purchase Agreement (SAFG Retirement Services, Inc.), Stock Purchase Agreement (American International Group, Inc.)
Access to Information. From During the date period from the execution of this Agreement until through the earlier to occur of the valid termination of this Agreement in accordance with Article VII and pursuant to its terms or the Effective Time, the Company shallwill, and shall will cause each Company Subsidiary to (a) provide to Parent and Merger Sub Nonprofit Organization to, afford representatives of Acquiror and their respective Representatives its financing sources reasonable access during normal business hours to officers, employees, agents and representatives of the Company, the Company Subsidiaries and the Nonprofit Organizations and to all of their respective properties (including without limitation, access for the purpose of (i) performing any non-intrusive environmental procedures, investigations or studies, or taking other non-intrusive actions related thereto, in connection with obtaining Phase I Environmental Site Assessments for or at the Real Property and (ii) preparing and coordinating programs, objectives and other information related to the integration of the business of the Company with the business of Acquiror and its Affiliates following consummation of the Cash Merger), and will furnish, within a reasonable time, to Acquiror all information (including extracts and copies of books, records, contracts and other documents, including a copy of each report, schedule, registration statement and other document filed or received by it during such a manner period pursuant to the requirements of federal securities laws) concerning the operations and business of the Company, any Company Subsidiary or any Nonprofit Organization, including access to their respective personnel as Acquiror may reasonably request. In conducting any inspection of any properties of the Company, the Company Subsidiaries or the Nonprofit Organizations, neither Acquiror nor any of its representatives will (A) interfere with the business of the Company, any Company Subsidiary or any Nonprofit Organization conducted at such property, or (B) damage any property or any portion thereof. The Company acknowledges and agrees that Acquiror will be permitted to contact and have discussions with any vendors, suppliers, tenants and subtenants; provided that Acquiror provides the Company with reasonable advance notice of its intention to take any of the foregoing actions and Acquiror agrees to use its reasonable best efforts not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company SubsidiariesCompany, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result Nonprofit Organization in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or taking any of the foregoing actions. The Company Subsidiaries, in and Acquiror will each case outside promptly provide the other copies of the ordinary course of business and all filings made by such party with any Governmental Authority in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws Agreement and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementcontemplated hereby.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Westland Development Co Inc), Agreement and Plan of Merger (Westland Development Co Inc), Agreement and Plan of Merger (Westland Development Co Inc)
Access to Information. From During the period beginning on the date of this Agreement until and ending on the earlier to occur of the valid Effective Time of the First Merger or the termination of this Agreement in accordance with Article VII and the Effective Timepursuant to its terms, the Company shall, and shall cause each Company Subsidiary to (a) provide to afford Parent and Merger Sub and their respective Parent’s Representatives reasonable access during normal business reasonable hours in to its properties, books, records and personnel to obtain all information concerning its business, including the status of product development efforts, properties, results of operations and personnel, as Parent may reasonably request (provided that such a manner as access shall be upon reasonable notice to Company and shall not to unreasonably interfere with the operation business or operations of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company its Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to During the contrary, from period beginning on the date of this Agreement until and ending on the earlier to occur of the valid Effective Time of the First Merger or the termination of this Agreement in accordance with Article VII and the Effective Timepursuant to its terms, Parent shall afford Company and Merger Sub Company’s Representatives reasonable access during reasonable hours to its properties, books, records and personnel to obtain all information concerning its business, including the status of product development efforts, properties, results of operations and personnel, as Company may reasonably request (provided that such access shall not, be upon reasonable notice to Parent and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection unreasonably interfere with the Transactions without the Company’s prior written consentbusiness or operations of Parent and its Subsidiaries). All requests for Parent and Company shall hold all information made received pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions5.4(b) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Non-Disclosure Agreement. Notwithstanding the foregoing, this Section 5.4(b) shall not require any of Parent, Company or any of their respective Subsidiaries to permit any inspection, or to disclose any information, that would result in (i) the waiver of any applicable attorney-client privilege; provided that such Person shall have used its reasonable best efforts to allow such inspection or disclose such information in a manner that would not result in a waiver of attorney-client privilege, or (ii) the violation of any Legal Requirements promulgated by a Governmental Entity.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Divx Inc), Agreement and Plan of Merger (Sonic Solutions/Ca/), Agreement and Plan of Merger (Divx Inc)
Access to Information. From the date of this Agreement until the earlier Subject to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeany applicable legal --------------------- requirement, the Company shall, upon reasonable notice, on and after the date of this Agreement, give, and shall cause each Company Subsidiary of the Subsidiaries to (a) provide to Parent give, Parent, Purchaser and Merger Sub and their respective Representatives reasonable the duly authorized attorneys, accountants or other representatives of them full access during normal business hours in to make or cause to be made such a manner as not to unreasonably interfere with investigation of the operation properties and business of any business conducted by the Company and each of the Subsidiaries and of its and their financial and legal condition as Parent and Purchaser deem necessary or any Company Subsidiary, advisable to the officers, employees, agents, familiarize themselves with such properties, offices business and other facilities matters and to investigate the representations, warranties, covenants and agreements of the Company set forth herein, provided that such investigation shall not interfere unreasonably with normal operations, and the Company shall furnish, and shall cause each of the Subsidiaries to furnish, such financial and operating data and other information (including without limitation, Tax Returns of the Company and the Company Subsidiaries and Subsidiaries) with respect to the books business, properties and records (including Tax Returns and supporting documentation) condition of the Company and the Subsidiaries as Parent and Purchaser shall from time to time reasonably request provided, that the foregoing shall not require the Company Subsidiariesto permit any inspection, and (b) furnish promptly such information concerning or to disclose any information, which in the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects reasonable judgment of the Company and would result in the disclosure of any trade secrets of third parties or violate any obligation of the Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that with respect to confidentiality if the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially have used reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party to such access inspection or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentdisclosure. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites Chief Financial officer of the Company or such person as may be designated by any of such officer. The Confidentiality Agreement dated June 19, 1995, as amended through the Company Subsidiariesdate hereof, each of between Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to (the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates "Confidentiality Agreement") shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof apply with respect to the Merger or the Transactions or any similar transaction or transactions Evaluation Materials (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof as defined in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement).
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cobra Golf Inc), Agreement and Plan of Merger (Cobra Golf Inc), Agreement and Plan of Merger (American Brands Inc /De/)
Access to Information. From (a) Upon reasonable notice and subject to applicable laws relating to the date exchange of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeinformation, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryits Subsidiaries to, afford to the directors, officers, employees, agents, investment bankers, accountants, consultants, advisers, counsel and other representatives (collectively, “Representatives”) of Parent and Parent Bank, reasonable access, during normal business hours during the period prior to the Effective Time, to all its properties, offices books, contracts, commitments, records, officers, employees, accountants, counsel and other facilities of Representatives and, during such period, it shall, and shall cause the Company and the Company its Subsidiaries to, make available to Parent and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such Parent Bank all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives Parent Bank may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub nothing herein shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of require the Company or any of the Company Subsidiariesits Subsidiaries to provide access to or to disclose information where such access or disclosure would, in each case outside the reasonable judgment of the ordinary course of business and Company, (A) breach any agreement with any third party in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from effect on the date of this Agreement until the earlier to occur Agreement, (B) constitute a waiver of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub attorney-client or other privilege held by such party or (C) violate any applicable Law. If any of the restrictions in clauses (A) through (C) of the foregoing sentence shall apply, the parties will use their respective affiliates shall conductreasonable best efforts to make appropriate alternative disclosure arrangements, without including adopting additional specific procedures to protect the prior written consent confidentiality of sensitive material and to ensure compliance with applicable Laws. As soon as reasonably practicable after they become available, but in no event more than 30 days after the end of each calendar month ending after the date hereof, the Company will furnish to Parent (a) consolidated financial statements (including balance sheets and statements of operations) of the Company and its Subsidiaries as of and for such month then ended, (which consent shall not b) internal management financial control reports showing actual financial performance against plan and previous period and (c) except for any materials subject to attorney-client privilege or otherwise required by Law to be unreasonably withheld, delayed kept confidential by the Company or conditioned)Company Bank, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials reports provided to the Company Board or any committee thereof in connection therewithor the board of directors of any Subsidiary of the Company or any committee thereof relating to the financial performance and risk management of the Company or any of its Subsidiaries. Disclosure obligations regarding In addition, the Company will furnish Parent with a Competing Proposal shall be governed copy of each report filed by Section 5.03. Parent shall, and shall cause each it or any of its Subsidiaries and its and their respective representatives to, hold all information provided with a Governmental Entity (other than portions thereof relating to confidential supervisory or furnished pursuant to this Section 5.06 confidential in accordance with examination materials) within three business days following the terms of the Confidentiality Agreementfiling thereof.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Home Bancorp, Inc.), Agreement and Plan of Merger (Louisiana Bancorp Inc), Agreement and Plan of Merger (Home Bancorp, Inc.)
Access to Information. From the date (a) Upon reasonable prior notice and subject to applicable law, each of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII Parent and the Effective Time, the Company shall, and shall cause each Company Subsidiary of their Subsidiaries to, afford to the directors, officers, managers, members, partners, employees, investment bankers, advisors, consultants, accountants, counsel, Financing Sources, agents and representatives (acollectively “Representatives”) provide to Parent and Merger Sub and their respective Representatives reasonable access of the other party access, during normal business hours in such a manner as not during the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryEffective Time, to the all its properties, books, contracts, commitments and records, and to its officers, employees, agentsaccountants, properties, offices counsel and other facilities representatives, in each case in a manner not unreasonably disruptive to the operation of the business of Parent or the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company their Subsidiaries, and, during such period, Parent and the Company Subsidiariesshall, and (b) furnish promptly such shall cause their Subsidiaries to, make available to Parent or the Company, as applicable all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives the Company may reasonably request; provided. At the request of Parent or the Company, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company other party shall use its commercially reasonable efforts to allow for comply with its obligations under the preceding sentence by providing electronic access to such documents and information on the online data room established by the Company prior to the date hereof. Notwithstanding any other provision of this Agreement, neither the Company nor any of its Subsidiaries, on the one hand, nor Parent nor any of its Subsidiaries on the other hand, shall be required to provide access to or to disclose information where such access or disclosure in a manner that does not result in a loss would (A) violate or prejudice the rights of its customers or employees, (B) jeopardize the attorney-client privilege); (ii) violate any confidentiality obligations privilege of the Company institution in possession or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure control of such information); , (iiiC) result in a competitor of the Company contravene, violate or breach any law, rule, regulation, order, judgment, decree or fiduciary duty or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein binding agreement entered into prior to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and consistent with past practice or (D) be adverse to its interests in connection with any pending or threatened litigation between the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with parties hereto over the terms of the Confidentiality this Agreement.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Consolidated Communications Holdings, Inc.), Agreement and Plan of Merger (Fairpoint Communications Inc)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeUpon reasonable notice, the Company shall, shall (and shall cause each Company Subsidiary to (aits respective Subsidiaries to) provide afford to Parent and Merger Sub its representatives (including any financing sources and their respective Representatives representatives) reasonable access during normal business hours in such a manner as not hours, during the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryEffective Time, to the all its officers, employees, agents, properties, offices offices, plants and other facilities of and to all books and records, including financial statements, other financial data and monthly financial statements within the time such statements are customarily prepared, and, during such period, the Company shall (and the Company shall cause its respective Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (bto) furnish promptly such to Parent and its representatives (including any financing sources and their representatives), consistent with its legal obligations, all other information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such may restrict the foregoing access or furnish such information to the extent that that, in the Company is advised by counsel that doing so would: Company’s reasonable judgment, (i) providing such access would result in the loss waiver of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of any attorney-client privilege); (ii) violate , in the disclosure of any confidentiality obligations trade secrets of the Company or any Company Subsidiary to any third party or otherwise breach, contravene parties or violate any then effective Contract of its obligations with respect to which the Company or any Company Subsidiary is party (provided that confidentiality if the Company shall use its commercially have used all reasonable efforts to obtain the required consent of such third party to such access, or (ii) any law, treaty, rule or regulation of any Governmental Entity applicable to the Company requires the Company or its Subsidiaries to preclude the other party and its representatives from gaining access to any properties or disclosure information, provided, further, that the Company will inform Parent of the general nature of the document or information being withheld and implement appropriate procedures reasonably cooperate with Parent to enable provide such document or information in a manner that would not result in violation of law or the disclosure loss or waiver of such information); (iii) result in a competitor privilege. No investigation by Parent or its representatives shall affect or be deemed to modify or waive the representations and warranties of the Company or set forth in this Agreement. Parent will hold any Company Subsidiary receiving such information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein non-public in confidence to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Companyextent required by, and in no event may any environmental investigation include any sampling or other intrusive investigation accordance with, the provisions of airthat certain agreement, surface waterdated June 27, groundwater2019 (the “Confidentiality Agreement”), soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require between the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Legg Mason, Inc.), Agreement and Plan of Merger (Franklin Resources Inc)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent Parent, its counsel, financial advisors, auditors and Merger Sub and their respective Representatives other authorized representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities books and records of the Company and the Company its Subsidiaries and to such financial and operating data and other information as such Persons may reasonably request and (b) instruct the books employees, counsel, financial advisors, auditors and records (including Tax Returns and supporting documentation) other authorized representatives of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects its Subsidiaries to cooperate with Parent in its investigation of the Company and Company Subsidiaries its Subsidiaries. Any investigation pursuant to this Section 6.03 shall comply with applicable Law and be conducted during business hours and in such manner so as Parent or its Representatives may reasonably request; provided, however, that not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries. No information or knowledge obtained by Parent in any investigation pursuant to this Section 6.03 shall not affect or be required deemed to (modify any representation or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that warranty made by the Company is advised by counsel that doing so would: hereunder. Nothing in this Section 6.03 shall require the Company (i) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company would result in the loss disclosure of attorney-client privilege (provided that any trade secrets of third Persons or violate any of the Company shall use its commercially reasonable efforts Company’s obligations with respect to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); confidentiality, (ii) violate to disclose any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving privileged information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of its Subsidiaries, (iii) to disclose any information the disclosure of which could, in the reasonable judgment of the Company, cause significant competitive harm to the Company Subsidiaries, in each case outside if the transactions contemplated hereby are not consummated or (iv) to permit invasive testing of the ordinary course any of business and in connection with the Transactions without the Company’s prior written consentor its Subsidiaries’ real property. In no event shall the Company be required to supply pursuant to this Section 6.03 to Parent, or Parent’s representatives, any information relating to indications of interest from, or discussions with, any other potential acquirers of the Company, with respect to which Section 6.04 shall apply. All requests for information made pursuant to this Section 5.06 shall be directed access to the person offices or persons designated by the Company. During any visit to the business or property sites books and records of the Company or any its Subsidiaries shall be made to such representatives of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and as the Company Subsidiaries’ reasonable safety shall designate, who shall be solely responsible for coordinating all such requests and security proceduresall access permitted hereunder. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased All information disclosed by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal Parent and its representatives pursuant hereto shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant subject to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement (the “Confidentiality Agreement”) dated November 13, 2007 between the Company and Roche Holding Ltd, a joint stock company organized under the laws of Switzerland (“Holding”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ventana Medical Systems Inc), Agreement and Plan of Merger (Roche Holding LTD)
Access to Information. From During the Pre-Closing Period, upon reasonable prior written notice, the Company shall (and shall cause the respective Representatives of the Group Companies to): (a) provide Parent and its authorized Representatives reasonable access, in a manner not disruptive to the operations of the business of the Group Companies, during normal business hours and upon reasonable notice throughout the Pre-Closing Period, to the properties, books, records and other documents and information relating to the Group Companies as may be reasonably requested in writing, (b) furnish promptly to such Representatives all information concerning the business, properties and personnel of the Group Companies as may reasonably be requested in writing, and (c) provide reasonable access to the Group Companies' Representatives and personnel, to the extent such individuals are not Affiliates of Parent; provided, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent if such disclosure would, in the reasonable judgment of the 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, Order or the provisions of any Contract to which the Company or any of its Subsidiaries is a party, (iii) jeopardize any attorney-client privilege, work product doctrine or any other applicable legal privilege, or (iv) give a third party the right to terminate or accelerate its rights under a Contract entered into prior to the date of this Agreement until Agreement. All information obtained by the earlier parties pursuant to occur of the valid termination of this Agreement Section 7.2 shall be kept confidential in accordance with Article VII the Confidentiality Agreements and Section 10.12. Notwithstanding the Effective Timeforegoing, the Company shall, and any such investigation shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours be conducted in such a manner as not to unreasonably interfere with the business or operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party its Subsidiaries or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor any significant interference with the timely discharge by the employees of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any its Subsidiaries of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementduties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger
Access to Information. From and after the date of this Agreement until the earlier Distribution Date, CFI and its Subsidiaries shall afford to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shalland its authorized accountants, counsel and shall cause each Company Subsidiary to other designated representatives (acollectively, "Representatives") provide to Parent and Merger Sub and their respective Representatives reasonable access (including using reasonable efforts to give access to the person or firms possessing information) and duplicating rights during normal business hours in to all administrative records, books, contracts and instruments, and all Company-owned computer software and computer data and other Company-owned data and information (collectively, "Information") within CFI's or any such a manner as not Subsidiary's possession or control relating to unreasonably interfere with the operation of Company or any business conducted Company Subsidiary and to any property owned by CFI that was leased or operated by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries insofar as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised reasonably required by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breachSubsidiary. Similarly, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party and its Subsidiaries shall afford to CFI and its Representatives reasonable access (provided that the Company shall use its commercially including using reasonable efforts to obtain give access to persons or firms possessing information) and duplicating rights during normal business hours to Information within the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company Company's or any Company Subsidiary receiving information that is competitively sensitive; such Subsidiary's possession or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein control relating to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company CFI or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person CFI Subsidiary or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided relating to the Company Board prior to the Distribution Date and to any property owned by the Company that was leased or operated by CFI or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries CFI Subsidiary (other than the Company and its Subsidiaries), insofar as such access is reasonably required by CFI or any CFI Subsidiary. Information may be requested under this Article V for, without limitation, audit, accounting, claim, litigation and their respective representatives totax purposes, hold all information provided or furnished pursuant to as well as for purposes of fulfilling disclosure and reporting obligations and for performing this Section 5.06 confidential in accordance with Agreement and the terms of the Confidentiality Agreementtransactions contemplated hereby.
Appears in 2 contracts
Samples: Distribution Agreement (Consolidated Freightways Corp), Distribution Agreement (Consolidated Freightways Corp)
Access to Information. From the date of this Agreement until the earlier (a) Upon reasonable notice, and subject to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeapplicable Law, the Company shall, shall (and shall cause each Company Subsidiary its Subsidiaries to) afford to (a) provide to Parent Parent, its Subsidiaries and Merger Sub its and their respective Representatives officers, agents, employees, financing sources, consultants, professional advisers (including attorneys, accountants and financial advisors) (“Representatives”) reasonable access during normal business hours in such hours, under direct supervision of a manner as not designated employee of the Company, and upon reasonable prior notice to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryduring the period prior to the Effective Time, to the officers, employees, agents, all its and its Subsidiaries’ properties, offices books, contracts, commitments, records, officers and other facilities of employees and, during such period as Parent may from time to time reasonably request, and during such period the Company shall (and the Company shall cause its Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (bto) furnish promptly such to Parent all other information concerning the businessit, propertiesits Subsidiaries and each of their respective businesses, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such may restrict the foregoing access or furnish such and the disclosure of information to the extent that that, in the Company is advised by counsel that doing so would: reasonable good faith judgment of the Company, (i) any Law applicable to the Company or its Subsidiaries requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) the information is subject to confidentiality obligations to a Third Party, (iii) such disclosure would result in disclosure of any trade secrets of Third Parties, (iv) disclosure of any such information or document would reasonably be expected to result in the loss of attorney-client privilege (provided that provided, that, with respect to the matters set forth in subclauses (i) to (iv) herein, the Company and/or its counsel shall use its commercially their reasonable best efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for such access or disclosure in a manner that does not violate any Law or obligations to a Third Party or result in a the loss of attorney-attorney client privilegeprivilege (as applicable); ) or (iiv) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable would unreasonably disrupt the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee operations of the Company or any of the Company its Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Resource Capital Corp.), Agreement and Plan of Merger (Resource America, Inc.)
Access to Information. (a) From the date hereof until the Effective Time and subject to Applicable Law, the Company will give to Parent, its counsel, financial advisors, auditors and other authorized representatives reasonable access, during regular business hours and upon reasonable notice, to the offices, properties, books and records of the Company and its Subsidiaries, including personnel records, and will furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons may reasonably request and will instruct employees, counsel, financial advisors, auditors and other representatives of the Company and its Subsidiaries to cooperate with Parent in its investigation of the Company and its Subsidiaries, provided that Parent shall reimburse the Company and its Subsidiaries for any reasonable third party expenses incurred by them in connection with the foregoing. Without limiting generality of the foregoing, the Company shall provide to Parent, as promptly as practicable after the completion of each fiscal month of the Company, copies of the final financial and operating monthly reports described in Section 7.07(a) of the Company Disclosure Schedule. No access to or disclosure of information shall be required to the extent such access or disclosure would jeopardize the work product privilege or the attorney-client privilege of the Company or any of its Subsidiaries or violate any binding agreement entered into prior to the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of it being agreed that the Company and the Company its Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or use their reasonable best efforts to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure to be provided in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company cause such jeopardization or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Lawviolation). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made Any investigation pursuant to this Section 5.06 shall be directed conducted in such manner as not to interfere unreasonably with the person or persons designated by the Company. During any visit to the conduct of business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementSubsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Citizens Communications Co), Agreement and Plan of Merger (Commonwealth Telephone Enterprises Inc /New/)
Access to Information. From (a) During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimePre-Closing Period, the Company shall, and shall cause each Company Subsidiary to (a) the Acquired Companies to, provide to Parent and Merger Sub and their respective Representatives with reasonable access during normal business hours upon reasonable advance notice, under the supervision of the Company’s personnel and in such a manner as shall not to unreasonably interfere with the operation business or operations of any business conducted by the Company or any Company Subsidiary, of its Subsidiaries to (i) all of the officers, employees, agents, Acquired Companies’ properties, offices and other facilities of the Company and the Company Subsidiaries and to the assets, Contracts, books and records and other documents and data; (including Tax Returns and supporting documentationii) employees of the Company and the Company Subsidiaries, Acquired Companies; and (biii) furnish promptly such any other information concerning the businessBusiness, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects personnel of the Company and Company Subsidiaries Acquired Companies as Parent and Merger Sub or its any of their Representatives may reasonably request; provided. Notwithstanding the foregoing, however, that the Company shall not be required to (provide access to or to cause any Company Subsidiary to) afford such access or furnish such disclose information to the extent that where the Company is advised by counsel reasonably determines that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in would jeopardize the protection of the attorney-client or any other privilege of the Company, contravene any Law, so long as the Company has taken all reasonable steps to permit inspection of or to disclose such information on a manner basis that does not result in a loss of attorney-client privilege)contravene the applicable Law or Contract or waive the Company’s privilege with respect thereto; (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access and information shall be granted or disclosure made available, as applicable, to external counsel for Parent (subject to external counsel entering into a customary common interest agreement with the Company, on terms mutually agreeable to Parent and implement appropriate procedures to enable the disclosure of such information); (iiiCompany) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contraryextent required for the purpose of complying with applicable Laws, from the date of this Agreement until the earlier including antitrust Laws. Prior to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which such consent shall not be unreasonably withhelddelayed, delayed withheld or conditioned), Parent shall not contact any environmental investigation at suppliers to, or customers of, the Company or its Subsidiaries with respect to such suppliers’ or customers’ relationships with the Acquired Companies and Parent shall have no right to perform invasive or subsurface investigations of any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations property of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementSubsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (GXS Worldwide, Inc.), Agreement and Plan of Merger (Open Text Corp)
Access to Information. From the date of this Agreement Effective Date until the Closing or the earlier to occur of the valid termination of this Agreement in accordance with Article VII VIII, Seller Parties will (and the Effective Time, the Company shall, and shall will cause each Group Company Subsidiary to to) (a) provide to Parent give the Buyer and Merger Sub its Affiliates and their respective counsel, financial advisors, auditors, employees, agents and other Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, to the officers(i) all Facilities, employeesAssets, agentspersonnel, propertiesagents and accountants of each Group Company, offices (ii) true, correct and complete copies of books, records, Tax Returns, commitments and Contracts (including customer and supplier Contracts) and other facilities financial and operating data of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiarieseach Group Company, and (biii) furnish promptly other information with respect to any Group Company as such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives Persons may reasonably request, including interim financial information (which Seller Parties shall cause to be prepared upon request from time to time), (b) instruct their respective counsel, accountants, financial advisors and other Representatives to reasonably cooperate with the Buyer in its investigation of any Group Company, and (c) make reasonable inquiries of Persons having business relationships with the Business or the Group Companies as Buyer shall request in writing and communicate the results of such inquiries to Buyer; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary tow) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure will be given in a manner that does not unreasonably interfere with the operations, activities and employees of the Group Companies, (x) such access and disclosure would not violate any applicable Legal Requirement, (y) such access and disclosure would not result in a the loss of any attorney-client privilege, work product protections or other similar privileges or protections (but, if applicable, copies of redacted information shall be provided to the extent possible); , (iiz) violate no Group Company shall be required to provide any confidentiality obligations of the Company individually identifiable health related information except in compliance with applicable Legal Requirement. No investigation by Buyer or any Company Subsidiary to any third party other information received by Buyer shall operate as a waiver or otherwise breachaffect any representation, contravene warranty or violate agreement given or made by any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result Seller Party in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentAgreement. All requests for information made provided to or obtained by Buyer pursuant to this Section 5.06 shall 5.3 will be directed subject to the person or persons designated Non-Disclosure Agreement, dated September 28, 2020, executed by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement [Buyer] (“Confidentiality Agreement”) in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company subject to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementAgreement for the term specified therein.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Assisted 4 Living, Inc.), Membership Interest Purchase Agreement (Assisted 4 Living, Inc.)
Access to Information. From the date (a) Upon reasonable prior notice and subject to applicable law, each of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII Parent and the Effective Time, the Company shall, and shall cause each Company Subsidiary of their Subsidiaries to, afford to the directors, officers, managers, members, partners, employees, investment bankers, advisors, consultants, accountants, counsel, agents and representatives (acollectively “Representatives”) provide to Parent and Merger Sub and their respective Representatives reasonable access of the other party access, during normal business hours in such a manner as not during the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryEffective Time, to the all its properties, books, contracts, commitments and records, and to its officers, employees, agentsaccountants, properties, offices counsel and other facilities representatives, in each case in a manner not unreasonably disruptive to the operation of the business of Parent or the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company their Subsidiaries, and, during such period, Parent and the Company Subsidiariesshall, and (b) furnish promptly such shall cause their Subsidiaries to, make available to Parent or the Company, as applicable all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives the Company may reasonably request; provided. At the request of Parent or the Company, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company other party shall use its commercially reasonable efforts to allow for comply with its obligations under the preceding sentence by providing electronic access to such documents and information on the online data rooms established by each of the Company and Parent prior to the date hereof. Notwithstanding any other provision of this Agreement, neither the Company nor any of its Subsidiaries, on the one hand, nor Parent nor any of its Subsidiaries on the other hand, shall be required to provide access to or to disclose information where such access or disclosure in a manner that does not result in a loss would (A) violate or prejudice the rights of its customers or employees, (B) jeopardize the attorney-client privilege); (ii) violate any confidentiality obligations privilege of the Company institution in possession or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure control of such information); , (iiiC) result in a competitor of the Company contravene, violate or breach any law, rule, regulation, order, judgment, decree or fiduciary duty or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein binding agreement entered into prior to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and consistent with past practice or (D) be adverse to its interests in connection with any pending or threatened litigation between the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with parties hereto over the terms of the Confidentiality this Agreement.
Appears in 2 contracts
Samples: Joinder Agreement (Glowpoint, Inc.), Joinder Agreement (Glowpoint, Inc.)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide Prior to the Closing Date and subject to applicable Laws and Section 6.4, Parent shall be entitled, through its officers, employees and Merger Sub and Representatives (including their respective Representatives legal advisors and accountants), to have such access to the properties, businesses and operations of the Company and its Subsidiaries and such examination of the books and records of the Company and its Subsidiaries as it reasonably requests upon reasonable advance written notice in connection with Parent’s efforts to consummate the transactions contemplated by this Agreement. Any such access and examination shall be conducted during normal regular business hours in such a manner as and under circumstances that do not to unreasonably interfere with the operation normal operations of any the business conducted by the and shall be subject to restrictions under applicable Law. The Company or any Company Subsidiary, to shall cause the officers, employees, consultants, agents, propertiesaccountants, offices attorneys and other facilities Representatives of the Company and the Company its Subsidiaries to cooperate with Parent and to the books Parent’s Representatives in connection with such access and records (including Tax Returns examination, and supporting documentation) of Parent and its Representatives shall cooperate with the Company and its Representatives and shall use their commercially reasonable efforts to minimize any disruption to the Company Subsidiaries, and (b) furnish promptly business in connection therewith. Any disclosure during such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as investigation by Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (constitute any enlargement or to cause any Company Subsidiary to) afford such access additional representation or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations warranty of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result beyond those specifically set forth in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)Article IV. Notwithstanding anything herein to the contrary, from no such access or examination shall be permitted to the date extent that it (i) relates to interactions with prospective buyers of the Company or the negotiation of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timetransactions contemplated hereby, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee (ii) would unreasonably disrupt the operations of the Company or any of the Company its Subsidiaries, in each case outside (iii) is that portion of Company board materials regarding the consideration of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to Merger or any other transactions contemplated by this Section 5.06 shall be directed to the person Agreement or persons designated by the Company. During any visit to the business or property sites of (iv) would require the Company or any of its Subsidiaries to disclose information that in the reasonable judgment and good faith of counsel to the Company, is subject to attorney-client privilege or may conflict with any applicable Law or confidentiality obligations to which the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of its Subsidiaries is bound (in which case the Company (will use reasonable best efforts to provide such access in a manner which consent shall would not be unreasonably withheld, delayed so violate or conditionedjeopardize such privilege or legal or confidentiality restriction), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Colfax CORP), Agreement and Plan of Merger (DJO Finance LLC)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the The Company shall, shall (and shall cause each Company Subsidiary of its Subsidiaries to) afford to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agentscounsel, propertiesinvestment bankers, offices accountants and other facilities authorized representatives (“Representatives”) of Parent reasonable access, in a manner not unreasonably disruptive to the operations of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) business of the Company and the Company Subsidiaries, during normal business hours and upon reasonable notice throughout the period prior to the Final Effective Time, to the properties, books, Contracts, data, files, information and records of the Company and the Company Subsidiaries, and, during such period, shall (band shall cause each of its Subsidiaries to) furnish promptly to such Parent Representatives all information concerning the business, operations, properties, offices assets and other facilities, Contracts, assets, liabilities, employees, officers and other aspects personnel of the Company and the Company Subsidiaries as Parent or its Representatives may reasonably requestbe requested; provided, however, that nothing herein shall require the Company shall not be required or any of the Company Subsidiaries to (or to cause disclose any Company Subsidiary to) afford such access or furnish such information to Parent if such disclosure would, in the extent that reasonable judgment of the Company is advised by counsel that doing so would: Company, (i) result in the loss of attorney-client privilege (provided that cause significant competitive harm to the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does the Company Subsidiaries if the transactions contemplated by this Agreement are not result in a loss of attorney-client privilege); consummated, (ii) violate applicable Law or the provisions of any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract agreement to which the Company or any Company Subsidiary Subsidiaries is a party (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party develop reasonable alternative arrangements to provide such access or disclosure information to Parent, potentially including, to the extent reasonable, targeted redactions, provision of information to counsel to review and implement appropriate procedures to enable summarize for Parent or use of a ‘clean room’ environment for analysis and review of information by joint integration teams in coordination with counsel and the disclosure of such information); Company) or (iii) result in constitute a competitor waiver of the attorney-client or other privilege held by the Company or any Company Subsidiary receiving information Subsidiary. Parent agrees that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall it will not, and shall will cause their respective its Representatives acting on their behalf not to, contact use any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made obtained pursuant to this Section 5.06 shall be directed 6.2 for any competitive or other purpose unrelated to the person consummation of the transactions contemplated by this Agreement. The Confidentiality Agreement shall apply with respect to information furnished hereunder by or persons designated by on behalf of the Company. During any visit to the business or property sites of , the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws Subsidiaries and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained Representatives (as defined in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fidelity National Information Services, Inc.), Agreement and Plan of Merger (Sungard Capital Corp Ii)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the The Company shall, and shall cause each of the Company Subsidiary to (a) provide to Subsidiaries to, afford Parent and Merger Sub and their respective the Representatives of Parent reasonable access (which may be limited to remote access if reasonably required to protect the health and safety of any officer or employee of the Company or any of the Company Subsidiaries in response to a Contagion Event) during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agentsits and its Subsidiaries’ assets, properties, offices books, records, Contracts and other facilities of the Company personnel, and shall furnish, and shall cause to be furnished, as promptly as reasonably practicable to Parent and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) Representatives of Parent all other information concerning the Company and the Company Subsidiaries’ business, and (b) furnish promptly such information concerning the businessassets, properties, offices Contracts and other facilitiespersonnel as Parent may reasonably request in good faith in connection with the transactions contemplated by this Agreement, Contracts, assets, liabilities, employees, officers including the Sales Activities and other aspects the Financing or Replacement Financing or integration planning; provided that the Company may restrict the foregoing access to those Persons who have entered into a confidentiality agreement with the Company if they are not the subject of confidentiality obligations in favor of the Company and or to the extent required by applicable Law. Notwithstanding the foregoing, neither the Company nor any of the Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford provide such access or furnish such information to the extent that the Company is advised by counsel that doing so would: would (i) result in light of any Contagion Event, jeopardize the loss health and safety of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier officer or employee of the Company or any of the Company Subsidiaries, (ii) constitute a violation of applicable Law, (iii) result in each case outside the disclosure of any trade secrets, (iv) cause a breach of any confidentiality obligations to any third party or (v) waive or jeopardize the protection of any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection; provided, however, that, at Parent’s request, the Company and Parent shall use commercially reasonable efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not have the effect set forth in the applicable clause. In conducting any inspection of any properties of the ordinary course of business Company and in connection the Company Subsidiaries, Parent and its Representatives shall not (A) interfere with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing Subsidiaries conducted at such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security proceduresproperty or (B) damage any property or any portion thereof. Notwithstanding anything Prior to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parentneither Parent nor Merger Sub, Merger Sub or nor any of their respective affiliates Representatives, shall conduct, without have the prior written consent right to conduct invasive environmental testing or sampling at any of the facilities or properties of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all without the Company’s consent. All information provided or furnished obtained pursuant to this Section 5.06 confidential 6.4 shall continue to be governed by the Confidentiality Agreement, which shall remain in full force and effect in accordance with the terms of the Confidentiality Agreementits terms.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Industrial Logistics Properties Trust), Agreement and Plan of Merger (Monmouth Real Estate Investment Corp)
Access to Information. From Upon reasonable notice, and except as may otherwise be required by applicable Law, the date of this Agreement until Company shall provide Parent and its Representatives reasonable access, during normal business hours throughout the earlier period prior to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, to the Company shallEntities’ properties, books, records and personnel, and during such period, the Company shall cause each to be furnished promptly to Parent, its Representatives and, to the extent provided in Section 5.9, its Financing Sources, all information concerning the Company Subsidiary to (a) provide to Parent and Merger Sub Entities and their respective Representatives reasonable access during normal business hours in businesses, as Parent or the Financing Sources may reasonably request, including copies of such a manner information as not to unreasonably interfere with is necessary for the operation of any business conducted by the Company or any Company Subsidiaryoperation, to the officers, employees, agents, properties, offices ownership and other facilities management of the Company Entities’ business or information as may be required to permit Parent to satisfy its obligations to any Governmental Authority following the Effective Time (but in the case of the Financing Sources, only if relevant to the Financing); provided that Parent and the Company Subsidiaries and Financing Sources shall not use any information obtained under this Section 5.6 for any purpose unrelated to the books and records (including Tax Returns and supporting documentation) of Merger or the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably requesttransactions contemplated hereby; provided, however, that the Company shall not be required to (a) permit any invasive environmental sampling or to cause (b) provide any Company Subsidiary to) afford such access or furnish such information to that in the extent that reasonable, good-faith judgment of the Company is advised by counsel that doing so would: (i) would be reasonably likely to result in the loss disclosure of any trade secrets of third parties or breach any confidentiality obligation of any Company Entity; provided that the Company, subject to the provisions of Section 5.7(a), shall use reasonable best efforts to obtain the required consent of such third party to provide such access or disclosure, (ii) would be reasonably likely to jeopardize protections afforded any Company Entity under the attorney-client privilege (privilege; provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner to the maximum extent that does not result in a loss of attorney-client privilege); privilege or (iiiii) violate any confidentiality obligations of applicable Law requires the Company or any Company Subsidiary to restrict or prohibit access to any third party such properties or otherwise breachinformation; provided, contravene or violate any then effective Contract to which further, that (A) the Company shall promptly notify Parent in writing if any reason described in the foregoing clauses (b)(i), (b)(ii) or (b)(iii) is applicable to any Company Subsidiary request for information and (B) if any such access or information is party limited for the reasons described in the foregoing clauses (provided that b)(i), (b)(ii) or (b)(iii), Parent and the Company shall use its commercially their respective reasonable best efforts to obtain establish a process that (through use of steps such as targeted redactions, provision of information to counsel to review and summarize for Parent, use of a “clean room” environment for analysis and review of information by appropriate recipients in coordination with counsel and the required consent Company or, in the case of such third party clause (b)(ii), entry into a customary joint defense agreement with respect to such access or disclosure and implement appropriate procedures any information to enable be so provided, if the Parties determine that doing so would reasonably permit the disclosure of such information); (iiiinformation without violating applicable Law or losing such privilege) result in a competitor shall provide Parent with timely access to the fullest extent possible to the substance of the Company information described in this Section 5.6. All information obtained by Parent and its Representatives under this Section 5.6 shall be treated as “Evaluation Material” for purposes of the Confidentiality Agreement (and, if and to the extent applicable, such information shall be further treated as “Restricted Evaluation Material” for purposes of the Clean Room Agreement or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law“Restricted Synergies Evaluation Material” for purposes of the Synergies Clean Team Agreement). Notwithstanding anything herein to the contraryany other provision hereof, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub each Party agrees that it shall not, and shall cause their respective its Representatives acting on their behalf not to, contact prior to the Effective Time, use any customer, partner, vendor, supplier information obtained under this Section 5.6 for any competitive or employee other purpose unrelated to the consummation of the Company Merger; provided, however, that, prior to the Effective Time, nothing in this Section 5.6 shall limit any customary disclosures made by Parent to the Financing Sources, rating agencies, existing lenders (and related agents) or any of the Company Subsidiaries, in each case outside of the ordinary course of business and otherwise in connection with efforts or activities by Parent or the Transactions without Financing Sources to obtain the Company’s prior written consent. All requests for Financing; provided, further, that the recipient of such information made and other information contemplated to be provided by the Company pursuant to this Section 5.06 shall be directed 5.6 agree to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiariescustomary confidentiality arrangements, each of Parent including “click through” confidentiality agreements and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementconfidentiality provisions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Centene Corp), Agreement and Plan of Merger (Magellan Health Inc)
Access to Information. From the date of this Agreement Execution Date until the earlier to occur of Closing Date, upon the valid termination of this Agreement in accordance with Article VII request from ETE, ETP will, and will cause ETC III, ETC II and the Effective Time, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent give ETE and Merger Sub its counsel, financial advisors, auditors and their respective Representatives other authorized representatives (collectively, “Representatives”) reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agentsoffices, properties, offices books and other facilities records of the Company and the Company Subsidiaries and to the books and records (including Tax Returns of ETP, ETC III and supporting documentation) of ETC II relating to the Company and permit ETE to make copies thereof, in each case (i) during normal business hours and (ii) solely to the extent that ETP either (1) has access to such offices, properties, books and records and has the right, pursuant to the Company SubsidiariesLLC Agreement, to provide access to such offices, properties, books and records to such Persons or (2) has the right, pursuant to the Company LLC Agreement, to require the Company to provide such access to such Persons; and (b) furnish promptly to ETE and its Representatives such information concerning the business, properties, offices financial operating data and other facilitiesinformation relating to ETC III, Contracts, assets, liabilities, employees, officers ETC II and other aspects of the Company and Company Subsidiaries as Parent or its Representatives such Persons may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information solely to the extent that the Company is advised by counsel that doing so would: ETP either (i) result in possesses such financial and operating data and other information and has the loss of attorney-client privilege (provided that right, pursuant to the Company shall use its commercially reasonable efforts LLC Agreement, to allow for furnish such access financial and operating data and other information to such Persons or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of has the right, pursuant to the Company or any Company Subsidiary LLC Agreement, to any third party or otherwise breach, contravene or violate any then effective Contract to which require the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of furnish such third party financial and operating data and other information to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)Persons. Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made Any investigation pursuant to this Section 5.06 5.3 shall be directed conducted in such manner as not to interfere with the person conduct of the business of ETP, ETC III, ETC II, or persons designated by the Company. During Notwithstanding the foregoing, ETE shall not be entitled to perform any visit to intrusive or subsurface investigation or other sampling of, on or under any of the business or property sites properties of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of ETP. Notwithstanding the Company (which consent foregoing provisions of this Section 5.3, ETP shall not be unreasonably withheldrequired to, delayed or conditioned)to cause ETC III, ETC II, or the Company to, grant access or furnish information to ETE or any environmental investigation at of its Representatives to the extent that such information is subject to an attorney/client or attorney work product privilege or that such access or the furnishing of such information is prohibited by Law or an existing Contract. To the extent practicable, ETP shall make reasonable and appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply. To the fullest extent permitted by Law, ETP and its Representatives and Affiliates shall (1) not be responsible or liable to ETE for personal injuries sustained by ETE’s Representatives in connection with the access provided pursuant to this Section 5.3 and (2) shall be indemnified and held harmless by ETE for any real property owned or leased losses suffered by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or such Persons in connection with any such personal injuries; provided such personal injuries are not caused by the gross negligence or willful misconduct of such real propertyETP. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its The Regency Parties and their respective counsel, financial advisors, auditors and other authorized representatives to, hold shall be deemed to be Representatives of ETP for all information provided or furnished pursuant to purposes of this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement5.3.
Appears in 2 contracts
Samples: Redemption and Exchange Agreement (Energy Transfer Partners, L.P.), Redemption and Exchange Agreement (Energy Transfer Equity, L.P.)
Access to Information. (a) From the date of this Agreement until hereof to the Closing Date or the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, the Company shall, and shall cause each Company Subsidiary to the extent consistent with applicable Law (a) provide to including Antitrust Law), afford Parent and Merger Sub and their respective its Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, upon reasonable notice, to the officers, employees, agents, properties, offices and other facilities Facilities of the Company and the Company its Subsidiaries and to the their books and records records, and shall furnish Parent with available monthly (including Tax Returns or more frequently during the Marketing Period) financial, operating and supporting documentation) other data and information with respect to the business and properties of the Company and its Subsidiaries as Parent may reasonably request (including daily working capital reports from the Company Subsidiaries, and beginning of the Marketing Period until the Closing Date) (b) furnish promptly such other than information concerning a Company Proposal or a Superior Proposal, each of which shall be governed by Section 6.3). In exercising its rights hereunder, Parent shall (and shall cause each of its Representatives to) conduct itself so as not to interfere in the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects conduct of the business of the Company and Company its Subsidiaries as prior to Closing. Parent and Merger Sub acknowledge and agree that they and their Representatives shall not contact any officers, employees, landlords, tenants, licensees, franchisees, customers or its Representatives may reasonably request; provided, however, that agents of the Company and its Subsidiaries unless consented to by the Company (such consent not to be unreasonably withheld or delayed) and that any contact hereunder shall not be arranged and supervised by Representatives of the Company, unless the Company otherwise expressly consents with respect to any specific contact. Notwithstanding anything to the contrary set forth in this Agreement, neither the Company nor any of its Affiliates shall be required to (disclose to Parent or to cause any Company Subsidiary to) afford such access agent or furnish such Representative thereof any information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) if doing so could violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any of its Affiliates is a party or Law to which the Company Subsidiary or any of its Affiliates is party subject or (ii) which the Company or any of its Affiliates believes in good faith could result in a loss of the ability to successfully assert a claim of privilege (including the attorney-client and work product privileges); provided that the Company shall use its commercially reasonable efforts seek to obtain the any consent required consent of under any such third party Contract to permit such access or disclosure and implement appropriate procedures to enable the disclosure of such information)disclosure; (iii) result in a competitor of the Company or any Company Subsidiary receiving information provided, further, that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of if the Company or any of its Affiliates believes in good faith that any such disclosure may result in a loss of the ability to successfully assert a claim of privilege, the Company Subsidiaries, and Parent shall use commercially reasonable efforts to cooperate and explore in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant good faith whether a method could be used to this Section 5.06 shall be directed to the person or persons designated permit disclosure by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing its Representatives without waiving such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementprivilege.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Great Atlantic & Pacific Tea Co Inc), Agreement and Plan of Merger (Pathmark Stores Inc)
Access to Information. From Prior to the Effective Time, Parent shall be entitled, through its employees and representatives, to have such reasonable access to the assets, properties, records, business and operations of the Company as is reasonably necessary or appropriate in connection with Parent’s investigation of the Company with respect to the transactions contemplated hereby and with respect to Parent’s integration planning and transaction structuring. Any such investigation and examination shall be conducted at reasonable times during business hours upon reasonable advance notice and under reasonable circumstances so as to minimize disruption to or impairment of the Company’s business. No investigation by Parent or the Company (whether conducted prior to or after the date of this Agreement until the earlier to occur Agreement) shall diminish or obviate any of the valid termination representations, warranties, covenants or agreements of the Company or Parent contained in this Agreement in accordance with Article VII and the Effective TimeAgreement. In order that Parent may have a reasonable opportunity to make such investigation, the Company shall, shall furnish the representatives of Parent during such period with such information and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in copies of such a manner as not to unreasonably interfere with documents concerning the operation affairs of any business conducted by the Company or any Company Subsidiary, as such representatives may reasonably request and use its reasonable best efforts to the cause its officers, employees, consultants, agents, propertiesaccountants and attorneys to reasonably cooperate with such representatives in connection with such investigation. Notwithstanding the foregoing, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to provide access to or disclose (a) any information or documents which would (in the reasonable judgment of the Company) be reasonably likely to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in constitute a waiver of the loss of attorney-client or other privilege (provided that held by the Company or any of its subsidiaries, (ii) violate any applicable Laws or (iii) breach any agreement of the Company or any of its subsidiaries with any third party; provided, however, that each party shall use its commercially reasonable best efforts to allow for obtain any required consents and take such access other reasonable action (such as the entry into a joint defense agreement or disclosure in a manner that does not result in a other arrangement to avoid loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to permit such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitivedisclosure; or (ivb) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of if the Company or any of its affiliates, on the Company Subsidiariesone hand, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company Parent or any of its affiliates, on the Company Subsidiariesother hand, each of Parent and Merger Sub shallare adverse parties in a litigation, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security proceduresany information that is reasonably pertinent thereto. Notwithstanding anything to the contrary contained in this Section 5.06herein, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent Parent shall not be unreasonably withheld, delayed or conditioned), entitled to undertake any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or testing in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations its investigation of the Company Board Company’s (or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisionsits subsidiaries’) with any other personproperties, the entry into this Agreement, or any materials business and operations. The information and documents so provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant subject to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hospira Inc), Agreement and Plan of Merger (Pfizer Inc)
Access to Information. From Subject to Applicable Law and applicable contractual restrictions, from the date of this Agreement until hereof to the Effective Time or the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, (i) upon reasonable notice, the Company shall, shall (and shall cause each Company Subsidiary to (aits Subsidiaries to) provide to Parent afford Parent’s officers and Merger Sub and their respective Parent’s other authorized Representatives reasonable access access, during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, to the officers, employees, agents, its properties, offices and other facilities of the Company and the Company Subsidiaries and to the books books, Contracts, personnel, Tax Returns and records (including Tax Returns via remote or electronic means) and supporting documentation(ii) the Company shall notify Parent in writing (in accordance with Section 9.01) of any Customer or Supplier Adverse Event as promptly as practicable after the occurrence thereof. The foregoing shall not require the Company and (a) to provide access to or otherwise make available or furnish any books, Contracts or records if such access would violate a confidentiality, non-disclosure or other similar agreement in effect as of the Company Subsidiariesdate hereof, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent to provide access to or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access otherwise make available or furnish such any information if and to the extent that the provision of such information would in the good faith judgment of the Company is advised by based on advice of outside counsel that doing so would: be reasonably likely to jeopardize any attorney-client, work product or other legal privilege or protection (it being agreed that, (i) result in the loss case of attorney-client clauses (a) and (b), the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to violate such restriction or waive the applicable privilege or protection and (provided that ii) in the case of clause (a), the Company shall use its commercially reasonable efforts to allow for obtain any consents of Third Parties that are necessary to permit such access), (c) to provide access to or otherwise make available or furnish any information if and to the extent that the provision of such information would reasonably be expected to, in the judgment of the Company based on advice of outside counsel, violate any Applicable Law or (d) as determined by the Company in consultation with Parent in good faith, jeopardize the health and safety of any employee of the Company of its Subsidiaries in light of the COVID-19 virus or any COVID-19 Measures. Any such access pursuant to this Section 6.05 shall be conducted at Parent’s sole cost and expense under the supervision of appropriate personnel of the Company or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations its applicable Subsidiary. Any access to the properties of the Company or any Company Subsidiary of its Subsidiaries will be subject to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially Company’s reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)security measures. Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, (i) contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and its Subsidiaries in connection with the Transactions Merger or any of the other transactions contemplated by this Agreement without the Company’s prior written consent (such consent not be unreasonably withheld, delayed or conditioned, and in any case to be decided upon by the Company within one Business Day of Parent’s written request for such consent), or (ii) have any discussion regarding the Company with any customer, vendor or supplier of the Company without providing the Company a reasonable opportunity to participate in such discussion; provided that, for purposes of clause (ii), if Parent’s outside regulatory counsel advises, after reasonable consultation with, and agreement by, the Company’s outside regulatory counsel, that it is advisable for Parent not to have joint discussions with the Company and any applicable customer, vendor or supplier of the Company in order to comply with Applicable Law, then Parent, Merger Sub or their respective Representatives shall be permitted to have such discussion without providing the Company with an opportunity to participate. All requests for information made pursuant to this Section 5.06 6.05 shall be directed to the person or persons Persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 6.05 shall require the Company to permit any the inspection of, or to disclose disclose, any information regarding, regarding or related to the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other personcontemplated by this Agreement, the entry into this Agreement, Agreement or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed All such information provided by Section 5.03. Parent shall, and shall cause each or behalf of the Company or its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 6.05 shall be kept confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (DSP Group Inc /De/), Agreement and Plan of Merger (DSP Group Inc /De/)
Access to Information. From the date (a) Upon reasonable prior notice and subject to applicable law, each of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII Parent and the Effective Time, the Company shall, and shall cause each Company Subsidiary of their Subsidiaries to, afford to the directors, officers, managers, members, partners, employees, investment bankers, advisors, consultants, accountants, counsel, lenders, agents and representatives (acollectively “Representatives”) provide to Parent and Merger Sub and their respective Representatives reasonable access of the other party access, during normal business hours in such a manner as not during the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryEffective Time, to the all its properties, books, contracts, commitments and records, and to its officers, employees, agentsaccountants, properties, offices counsel and other facilities representatives, in each case in a manner not unreasonably disruptive to the operation of the business of Parent or the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company their Subsidiaries, and, during such period, Parent and the Company Subsidiariesshall, and (b) furnish promptly such shall cause their Subsidiaries to, make available to Parent or the Company, as applicable all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives the Company may reasonably request; provided. At the request of Parent or the Company, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company other party shall use its commercially reasonable efforts to allow for comply with its obligations under the preceding sentence by providing electronic access to such documents and information on the online data room established by the Company prior to the date hereof. Notwithstanding any other provision of this Agreement, neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure in a manner that does not result in a loss would (A) violate or prejudice the rights of its customers or employees, (B) jeopardize the attorney-client privilege); (ii) violate any confidentiality obligations privilege of the Company institution in possession or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure control of such information); , (iiiC) result in a competitor of the Company contravene, violate or breach any Company Subsidiary receiving information that is competitively sensitive; law, rule, regulation, order, judgment, decree, fiduciary duty or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein binding agreement entered into prior to the contrary, from the date of this Agreement until in the earlier ordinary course of business consistent with past practice or (D) be adverse to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee interests of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided in any pending or furnished pursuant to this Section 5.06 confidential in accordance with threatened litigation between the parties hereto over the terms of the Confidentiality this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Consolidated Communications Holdings, Inc.), Agreement and Plan of Merger (Enventis Corp)
Access to Information. From the date of this Agreement hereof until the earlier Effective Time and subject to occur of the valid termination of this Agreement in accordance with Article VII Applicable Law and the Effective TimeConfidentiality Agreement dated as of March 22, 2010 between the Company and Parent (the “Confidentiality Agreement”), the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent give Parent, its counsel, financial advisors, auditors and Merger Sub and their respective Representatives other representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, on reasonable prior notice, to the officers, employees, agentsoffices, properties, offices books and other facilities records of the Company and the Company Subsidiaries Subsidiaries, (b) furnish to Parent, its counsel, financial advisors, auditors and to other representatives, at Parent’s expense, such agreements, financial and operating data, and other information and documentation as such Persons may reasonably request and (c) instruct the books employees, counsel, financial advisors, auditors and records (including Tax Returns and supporting documentation) other representatives of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects its Subsidiaries to cooperate with Parent in its investigation of the Company and Company its Subsidiaries as Parent or its Representatives may reasonably request; providedrequested by Parent. Notwithstanding the foregoing, however, that the Company shall not be required to (provide access to any information or to cause any Company Subsidiary to) afford such access or furnish such information to documents which would, in the extent that reasonable judgment of the Company is advised by counsel that doing so would: Company, (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate breach any confidentiality obligations agreement of the Company or any Company Subsidiary to with any third party Third Party, (ii) constitute a waiver of the attorney-client or otherwise breach, contravene or violate any then effective Contract to which other privilege held by the Company or any Company Subsidiary is party (provided that the Company shall use of its commercially reasonable efforts to obtain the required consent of such third party to such access Subsidiaries or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) which would result in a competitor of the Company or any Company Subsidiary receiving material information that which is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made Any investigation pursuant to this Section 5.06 shall be directed conducted in such manner as not to interfere unreasonably with the person or persons designated by the Company. During any visit to conduct of the business or property sites of the Company and its Subsidiaries. No information or knowledge obtained by Parent in any of investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedureshereunder. Notwithstanding anything to the contrary contained in this Section 5.066.03 or in the Confidentiality Agreement, from Parent shall be permitted to provide information and documents provided by the date Company or its Subsidiaries to Parent’s counsel, financial advisors, auditors and other representatives (including consultants) for the purposes of implementing the transactions contemplated by this Agreement until or evaluating or implementing any post-Closing restructuring involving the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub Company or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementSubsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Diamond Management & Technology Consultants, Inc.), Agreement and Plan of Merger (PricewaterhouseCoopers LLP)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid termination of Closing Date or the date this Agreement terminates in accordance with Article VII and the Effective TimeXI, the Company shall, and shall cause each Company Subsidiary of its Subsidiaries to (a) provide to Parent give the Buyer, its counsel, financial advisors, auditors and Merger Sub and their respective Representatives other representatives, at the sole expense of the Buyer, reasonable access during normal business hours in to the offices, properties, books and records of the Company and its Subsidiaries; (b) furnish to the Buyer, its counsel, financial advisors, auditors and other representatives such a manner as not information relating to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryof its Subsidiaries as may be reasonably requested, including such information as is necessary for the Buyer to comply with GAAP in respect of the officers, Purchased Interests (including information necessary to determine the value of any intangibles of the Company); and (c) instruct the employees, agentscounsel, properties, offices accountants and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee advisors of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection its Subsidiaries to cooperate with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites Buyer in its investigation of the Company or and any of its Subsidiaries provided that any such access and review shall be granted and conducted in such manner as not to interfere unreasonably with the Company Subsidiaries, each conduct of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the business of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06Agreement, from neither the date Sellers nor the Company shall be required to disclose any information to the Buyer or its counsel, advisors or representatives if doing so would in the written opinion of this Agreement until outside counsel to the earlier Sellers delivered to occur the Buyer (i) violate any agreement or Law to which the Sellers the Company or its Subsidiaries is a party or to which Sellers, the Company or its Subsidiaries is subject or (ii) result in the waiver of any legal privilege or work product protection of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub Sellers or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real propertyAffiliates. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all Any information provided or furnished pursuant to this Section 5.06 confidential in accordance with 7.3 shall be subject to the terms of the Confidentiality Agreement, dated September 19, 2011, between the Company and Buyer (the “Confidentiality Agreement”). The Confidentiality Agreement shall terminate automatically, without any action by any party, upon the Closing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Evercore Partners Inc.)
Access to Information. From the date of this Agreement until the earlier Subject to occur of the valid termination of this Agreement in accordance with Article VII and applicable Law, upon reasonable notice, prior to the Effective TimeDate, the Company shall, Debtors shall (and shall cause each Company Subsidiary to their Subsidiaries to) afford (ai) provide to Parent and Merger Sub the Investors and their respective Representatives (including the Ad Hoc Counsel), upon request, reasonable access access, during normal business hours in such a manner as not to unreasonably interfere and without unreasonable disruption or interference with the operation of any Company’s and its Subsidiaries’ business conducted by the Company or any Company Subsidiary, operations to the Company’s and its Subsidiaries’ officers, directors and employees, agentsand Representatives, properties, offices books, contracts and other facilities records and, prior to the Effective Date, the Debtors shall (and shall cause their Subsidiaries to) furnish promptly to such parties all information concerning the Company’s and its Subsidiaries’ business, properties and personnel as may reasonably be requested by any such party, provided, that the foregoing shall not require the Company (a) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company and would cause the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) violate any of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that obligations with respect to confidentiality to a third party if the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use have used its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of obtain, but failed to obtain, the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access inspection or disclosure and implement appropriate procedures disclosure, (b) to enable the disclosure of such information); (iii) result in a competitor disclose any legally privileged information of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company Debtors or any of their Subsidiaries as determined based on the Company Subsidiaries, in each case outside advice of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentlegal counsel, or (c) to violate any Laws. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites In furtherance of the Company or any of foregoing, but subject thereto, including the Company Subsidiariesproviso, each of Parent and Merger Sub the Debtors shall, and shall cause their respective representatives accessing such properties Subsidiaries to, comply provide the Investors with access to all applicable Laws pertinent information, memoranda and documents reasonably requested by the Company’s and Ad Hoc Counsel or other Representatives of the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything Ad Hoc Group with respect to (x) any investigation or other Proceeding conducted by the SEC or any other Governmental Entity or (y) or any Proceeding relating to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent restatement of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its Subsidiaries’ pre-petition financial statements. All requests for information and their respective representatives to, hold all information provided or furnished access made pursuant to this Section 5.06 confidential in accordance 7.7 shall be directed to an executive officer of the Company, the Company’s advisors or such person as may be designated by the Company’s executive officers. All information acquired by any Investor or its Representatives pursuant to this Section 7.7 shall be subject to any confidentiality agreement between the Company and such Investor. Notwithstanding the foregoing, the Debtors shall use reasonable best efforts to cooperate with the terms of Ad Hoc Counsel to provide the Confidentiality AgreementInvestors and their Representatives (including the Ad Hoc Counsel) with information subject to any common interest agreements or privilege between the Debtors and the Investors.
Appears in 2 contracts
Samples: Backstop Conversion Commitment Agreement (Global Geophysical Services Inc), Backstop Conversion Commitment Agreement (Global Geophysical Services Inc)
Access to Information. From Subject to confidentiality obligations and similar restrictions that may be applicable to information furnished to the Acquired Companies by Third Parties that may be in the Acquired Companies’ possession from time to time, from the date of this Agreement hereof until the earlier to occur of the Effective Time and the valid termination of this Agreement in accordance with Article VII and the Effective Timepursuant to Article VIII, the Company shall, and shall cause each Company Subsidiary to (a) provide its Subsidiaries to, afford to Parent and its Representatives reasonable access for purposes of consummating the Transactions during normal business hours in such manner as not to interfere in any material respect with the normal operation of the Acquired Companies, to their respective properties, books, Contracts, commitments, Tax Returns, records and appropriate officers and employees of the Acquired Companies, and shall furnish such Persons with existing financial and operating data and other information concerning the affairs of the Acquired Companies as such Persons may reasonably request; provided that such investigation shall only be upon reasonable notice and shall be at Parent’s sole cost and expense; provided, further, that nothing herein shall require the Acquired Companies to disclose any information to Parent or any such Person if such disclosure would, in the reasonable judgment of the Company, (i) cause significant competitive harm to any Acquired Company if the Transactions are not consummated, (ii) violate Applicable Law or the provisions of any Contract (including any confidentiality agreement or similar agreement or arrangement) to which any Acquired Company is a party, (iii) cause a material default pursuant to any Contract to which any Acquired Company is a party resulting in a breach by an Acquired Company of any representations and warranties in Article IV, (iv) jeopardize any attorney‑client or other legal privilege, or (v) result in the disclosure of any trade secrets of any Third Party, in each case, so long as the Company provides Parent written notice of the fact that it is withholding such information or documents and reasonably cooperates with Parent to allow disclosure of such information in a manner that is not reasonably likely to violate clauses (i) through (v); provided, further, that any access to the Acquired Companies’ properties will be subject to the Company’s security measures and insurance requirements and will not include the right to perform invasive testing or techniques. All information obtained by Parent, Merger Sub and their respective Representatives reasonable shall be subject to the Confidentiality Agreement. No investigation or access during normal business hours in such a manner as not permitted pursuant to unreasonably interfere with the operation of this Section 6.05 shall affect or be deemed to modify any business conducted representation or warranty made by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementhereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Doma Holdings, Inc.), Agreement and Plan of Merger (Doma Holdings, Inc.)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub and their respective Representatives representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, upon prior written notice to the Company, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, thereof; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers assets and other aspects liabilities of the Company and Company Subsidiaries as Parent or its Representatives representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by believes in good faith after consultation with legal counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party person or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to share such access or disclosure and implement appropriate procedures to enable the disclosure of such informationinformation with Parent); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including the HSR Act or any other Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall notshall, and shall cause each of its Subsidiaries and its and their respective Representatives acting on their behalf not torepresentatives, contact any customer, partner, vendor, supplier to hold all information provided or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made furnished pursuant to this Section 5.06 shall be directed to 5.04 confidential in accordance with the person or persons designated by terms of the CompanyConfidentiality Agreement. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and all of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.065.04, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned)Company, any invasive subsurface environmental site investigation at any real property owned or leased by the Company, and in no event may any such invasive subsurface environmental site investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (West Marine Inc)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time(a) Upon reasonable notice, the Company shall, shall (and shall cause each Company Subsidiary to (aits Subsidiaries to) provide afford to Parent and Merger Sub and their respective its Representatives reasonable access during normal business hours in such a manner as not hours, during the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryEffective Time, to the all its officers, employees, agents, properties, properties and offices and other facilities of the Company and the Company Subsidiaries and to the all books and records (including Tax Returns and supporting documentation) of and, during such period, the Company shall (and the Company Subsidiaries, and (bshall cause its Subsidiaries to) furnish promptly such to Parent and its Representatives, consistent with its legal obligations, all other information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such may restrict the foregoing access or furnish such information to the extent that that, in the Company is advised by counsel that doing so would: Company's reasonable judgment, (i) providing such access would result in the loss disclosure of attorney-client privilege (provided that any trade secrets of third parties or violate any of its obligations with respect to confidentiality if the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially have used all reasonable efforts to obtain the required consent of such third party to such access, (ii) any law, treaty, rule or regulation of any Governmental Authority applicable to the Company requires the Company or its Subsidiaries to restrict access to any properties or disclosure and implement appropriate procedures to enable the disclosure of such information); information or (iii) providing such access would result in a competitor of the Company waiving or otherwise losing any privilege with respect to any such information or if such information constitutes attorney work product. Without limiting the foregoing, the Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law shall cooperate with Parent and its Representatives in all reasonable respects (including any Antitrust Law). Notwithstanding anything herein without limitation by providing reasonable access to the contraryCompany's and its Subsidiaries' records, from personnel, Clients and other customers) in connection with, and shall use its reasonable best efforts to assist Parent and its Representatives or, at Parent's option, an independent third party consultant in their efforts following the date of this Agreement until the earlier to occur to, verify all of the valid termination information regarding Clients and other customers described in Section 3.l(aa)(vi) of this Agreement in accordance with Article VII (and the Effective Timeother statements set forth in such section), including without limitation if requested by Parent by requesting confirmation of such information and Merger Sub statements from Clients and other customers, provided that the Company shall nothave the right to participate jointly in any communications by Parent or its Representatives with Clients except to the extent it may otherwise agree in writing. In addition and without limiting the foregoing, (a) the Company shall promptly advise Parent of any Client-related or other operational (e.g., trade settlement) matters involving material risks to the Company and its Subsidiaries as an economic, liability or public relations matter (e.g., any such matters discussed at the Company's risk management meetings), and shall cause their respective Representatives acting on their behalf not toprovide Parent such other risk management information as Parent may reasonably request, contact (b) the Company shall promptly notify Parent of any customernegative change of more than 15% from the levels set forth in the Company's balance sheet as of March 31, partner2003 in excess capital, vendor(c) the Company shall promptly notify Parent if it becomes aware of any material changes in the credit quality or other financial status of Clients that would reasonably be expected to present material economic, supplier liability or employee public relations risks to the Company, or in the event of any material disputes with Clients involving material fees or other payments to the Company or its Subsidiaries, and (d) the Company shall promptly provide to Parent, as and when available, copies of (i) monthly financial statements for the Company and its Subsidiaries, including balance sheet and income statement, (ii) the Company's Management Information Systems reports with respect to operations and middle office and (iii) subject to the proviso in the first sentence of the preceding paragraph, all monthly FOCUS reports received by the Company or any of its Subsidiaries. The Company further acknowledges and agrees that prior to the Closing Date, Parent's risk management team will complete a review of all margin lending activities conducted by the Company and its Subsidiaries, and the Company agrees to reasonably cooperate in each case outside such efforts. Parent shall hold any such information that is non-public in confidence to the extent required by, and in accordance with, the provisions of the ordinary course of business letter dated April 22, 2003, as amended, between the Company and in connection with Parent and the Transactions without letter dated July 7, 2003 between Parent and the Company’s prior written consentCompany (collectively, the "Confidentiality Agreements"). All requests for information made pursuant to this Section 5.06 Any investigation by the Company or Parent shall be directed not affect the representations and warranties or the conditions to the person or persons designated by the Company. During any visit to the business or property sites obligations of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without as the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event case may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementbe.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Lehman Brothers Holdings Inc), Agreement and Plan of Merger (Neuberger Berman Inc)
Access to Information. From The Company shall (and shall cause each of its Subsidiaries to) afford to directors, officers, employees, counsel, investment bankers, accountants and other authorized representatives (“Representatives”) of Parent reasonable access, in a manner not unreasonably disruptive to the date of this Agreement until the earlier to occur operations of the valid termination business of this Agreement in accordance with Article VII the Company and its Subsidiaries, during normal business hours and upon reasonable notice throughout the period prior to the Effective Time, to the properties, books and records of the Company shalland its Subsidiaries and, during such period, shall (and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company its Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (bto) furnish promptly to such Representatives all information concerning the business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects personnel of the Company and Company its Subsidiaries in each case as Parent or its Representatives may reasonably requestbe requested for reasonable purposes related to the consummation of the transactions contemplated by this Agreement; provided, however, that the Company nothing herein shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of require the Company or any Company Subsidiary of its Subsidiaries to disclose any third party information to Parent or otherwise breachSub if such disclosure would, contravene in the reasonable judgment of the Company, be expected to (i) violate applicable Law or violate the provisions of any then effective Contract agreement to which the Company or any Company Subsidiary of its Subsidiaries is a party as of the date of this Agreement (provided that as long as the Company shall use its has used commercially reasonable efforts to obtain the required consent of such third the other party to such access the agreement), or disclosure and implement appropriate procedures to enable the disclosure of such information); (iiiii) result in constitute a competitor waiver of the Company attorney-client, work product doctrine or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of other legal privilege held by the Company or any of the Company its Subsidiaries; provided further, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant however, that nothing herein shall authorize Parent or its Representatives to this Section 5.06 shall be directed to the person or persons designated by the Company. During undertake any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from invasive additional diligence investigation after the date of this Agreement until Agreement, including investigations or sampling at any property owned, operated or leased by the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub Company or any of their respective affiliates shall conduct, its Subsidiaries without the prior written consent of the Company. Without limiting the foregoing, in the event that the Company (which consent does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent that it is withholding such access or information and shall use its reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not be unreasonably withheldviolate the applicable Law, delayed Contract or conditioned), any environmental investigation at any real property owned obligation or leased risk waiver of such privilege. The Confidentiality Agreement shall apply with respect to information furnished hereunder by or on behalf of the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential the Company’s Representatives (as defined in accordance with the terms of the Confidentiality Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (PARETEUM Corp), Agreement and Plan of Merger (Ipass Inc)
Access to Information. (a) From and after the date of this Agreement until the earlier to occur of the valid Closing Date and the termination of this Agreement in accordance with Article VII its terms, Seller shall use commercially reasonable efforts to, upon reasonable prior notice, cause the Company and the Effective Time, the Company shall, and shall cause each Company Subsidiary MUI Subsidiaries to (a) provide to Parent Buyer, at Buyer’s expense, under the supervision of the Company’s and Merger Sub and the MUI Subsidiaries’ personnel and/or their respective Representatives reasonable access and during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, reasonable access to the officersoffices, employeesfacilities, agentsassets, properties, offices management-level employees, books and other facilities records of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company MUI Subsidiaries, and (b) furnish promptly shall furnish, or cause to be furnished, to Buyer, such financial, tax and operating data and other information concerning the businesswith respect to such entities and their respective offices, facilities, assets, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers businesses and other aspects of operations as Buyer reasonably requests from time to time. Notwithstanding the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; providedforegoing, however, that the Company Seller shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for provide such access or disclosure in a manner that does not result in a loss of attorney-client privilege); if doing so would be reasonably likely to (iii) violate any confidentiality obligations unreasonably disrupt the operations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which of the Company or any Company Subsidiary is party MUI Subsidiaries (provided that the Company Seller shall use its commercially reasonable efforts to obtain the required consent afford Buyer such access at a time and place where no such disruption shall occur), (ii) cause a violation or breach of such or default under, or give a third party the right to such access terminate or disclosure and implement appropriate procedures accelerate any rights under, any agreement to enable which the disclosure Company, any of such information); the MUI Subsidiaries or any of their respective Affiliates is a party, (iii) result in a competitor loss of legal privilege to the Company, any of the MUI Subsidiaries or any of their respective Affiliates, (iv) constitute a violation of any applicable Law or fiduciary duty or (v) cause any material, demonstrative competitive harm to the Company or any Company Subsidiary receiving of the MUI Subsidiaries or expose the Company, any of the MUI Subsidiaries or any of their respective Affiliates to a material risk of liability. All information that is competitively sensitive; or (ivmade available pursuant to this Section 6.3(a) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein shall be treated as “Confidential Information” pursuant to the contrary, terms of the Confidentiality Agreement. During the period from the date of this Agreement until the earlier to occur of the valid Closing Date or the termination of this Agreement in accordance with Article VII its terms, Buyer hereby agrees that it is not authorized to and the Effective Time, Parent and Merger Sub shall not, not (and shall cause its Affiliates and its and their respective Representatives acting on their behalf not to, ) contact any employee, customer, partnersupplier, vendor, supplier distributor or employee other material commercial counterparty of the Company or any of the Company MUI Subsidiaries regarding the Company, any of the MUI Subsidiaries, in each case outside of the ordinary course of business and in connection with their respective businesses or the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementSeller.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the The Company shall, upon reasonable request and shall cause each Company Subsidiary to (a) provide to notice, afford Parent and Merger Sub and their respective its Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with during the operation of any business conducted by period from the Company or any Company Subsidiary, date hereof and prior to the officersEffective Time to (a) the properties and assets, employeesBooks and Records, agents, properties, offices Contracts and other facilities Company IP of the Company and its Subsidiaries, (b) such other information concerning the Company Subsidiaries business, properties and personnel (subject to the books and records (including Tax Returns and supporting documentationrestrictions imposed by applicable law) of the Company and the Company Subsidiariesits Subsidiaries as Parent may reasonably request, and (bc) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects all Employees of the Company and Company Subsidiaries as Parent or its Representatives may reasonably requestSubsidiaries; provided, however, that (i) such access does not unreasonably disrupt the normal operations of the Company, and (ii) the Company shall not be required may withhold or restrict access to (any document or to cause any Company Subsidiary to) afford such access or furnish such information solely if and to the extent that the Company is advised by counsel that doing so would: (i) disclosure of such information would reasonably be expected to violate any Contract or any applicable Legal Requirement or result in the loss waiver of attorneyany legal privilege or work-client privilege (provided product privilege. With respect to any information that the Company is permitted to withhold pursuant to the immediately preceding proviso, unless such information relates to a transaction with the Company within the six-month period immediately preceding May 14, 2012, the Company shall use its commercially reasonable best efforts to allow for such (A) obtain the required consent of any third party that is necessary to enable the Company to provide access or disclosure to Parent, (B) with respect to information that is subject to a legal privilege or work-product privilege, enter into a joint defense agreement or other arrangement, as appropriate, so as to enable the Company to disclose such information to Parent in a manner that does not result in a the loss of attorney-client such privilege); , and (iiC) violate any confidentiality obligations of the Company or any Company Subsidiary develop an alternative means by which to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of provide Parent with such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result information in a competitor of manner that does not violate the Company applicable Contract or Legal Requirement or jeopardize the applicable privilege. No information or knowledge obtained in any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made investigation pursuant to this Section 5.06 5.5 or otherwise shall affect or be directed deemed to modify, amend or supplement any representation or warranty contained herein or in the Disclosure Schedule or the conditions to the person or persons designated by the Company. During any visit to the business or property sites obligations of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything parties to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to consummate the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms and provisions hereof, restrict, impair or otherwise affect any Indemnified Parties’ right to indemnification hereunder or otherwise prevent or cure any misrepresentations, breach of the Confidentiality Agreementwarranty or breach of covenant.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Salesforce Com Inc)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the The Company shall, and shall cause each Company Subsidiary to (a) provide afford to Parent and Merger Sub its officers, directors, employees, accountants, consultants, agents, legal counsel, and their respective Representatives other representatives (collectively, the “Representatives”) reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryaccess, at reasonable times upon reasonable prior notice, to the officers, employees, agentsKey Employees, properties, offices and other facilities of the Company and the Company its Subsidiaries and to their books, records, contracts and documents and shall furnish reasonably promptly to Parent and its Representatives such information concerning the books Company’s and its Subsidiaries’ business, properties, contracts, records (including Tax Returns and supporting documentation) personnel as may be reasonably requested, from time to time, by or on behalf of Parent. Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company or its Subsidiaries or otherwise cause any unreasonable interference with the prompt and timely discharge by the employees of the Company and its Subsidiaries of their normal duties. Notwithstanding the Company Subsidiariesforegoing provisions of this Section 5.2, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (to, or to cause any Company Subsidiary of its Subsidiaries to) afford such , grant access or furnish such information to Parent or any of its Representatives to the extent that the Company such information is advised by counsel subject to an attorney/client or attorney work product privilege or that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent furnishing of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)prohibited by law. Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeforegoing, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee have access to personnel records of the Company or any of the Company Subsidiariesits Subsidiaries relating to individual performance or evaluation records, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for medical histories or other information made pursuant to this Section 5.06 shall be directed to the person extent the disclosure of such information would result in a violation of applicable law. Notwithstanding the foregoing, Parent agrees that Parent is not authorized to and shall not (and shall not permit any of its employees, agents, representatives or persons designated by the Company. During Affiliates to) contact any visit to the customer, supplier, distributor, joint-venture partner, lessor, lender or other material business or property sites relation of the Company or any of its Subsidiaries regarding the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conductits Subsidiaries, its business or the transactions contemplated by this Agreement, in each case, without the prior written consent of the Company (which such consent shall not to be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company. Parent agrees that it will not, and in no event may any environmental investigation include any sampling or other intrusive investigation of airwill cause its Representatives not to, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose use any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished obtained pursuant to this Section 5.06 confidential 5.2 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement and reasonably related matters. The Confidentiality Agreement dated as of November 11, 2015 between Parent and the Company (the “Confidentiality Agreement”), shall survive the execution and delivery of this Agreement and shall apply to all information furnished thereunder or hereunder and any other activities contemplated thereby. The Company acknowledges that, in accordance connection with the terms of Equity Financing, Parent shall be entitled to disclose, pursuant to the Confidentiality AgreementExchange Act, any information contained in any presentation to the Equity Financing Sources, which information may include Confidential Information; provided, however, that Parent provides the Company with a reasonable opportunity to review and provide comments to such presentation and the Company consents to the contents thereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nexeo Solutions Holdings, LLC), Agreement and Plan of Merger (WL Ross Holding Corp.)
Access to Information. (a) From and after the date of this Agreement until the earlier to occur of the valid Effective Time and the termination of this Agreement in accordance with Article VII IX, upon reasonable advance notice and the Effective Timesubject to applicable Law (including any applicable COVID-19 Measures), the Company shall, shall (and shall cause each Company Subsidiary its Subsidiaries to), afford to Parent, its Affiliates and its directors, officers, agents, control persons, employees, consultants and professional advisors (aincluding attorneys, accountants and financial advisors) provide to Parent and Merger Sub and their respective Representatives (“Representatives”) reasonable access during normal reasonable business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, to the officers, employees, agents, all of its and its Subsidiaries’ properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilitiesbooks, Contracts, assetscommitments, liabilities, employeesrecords, officers and other aspects of Employees and, during such period, the Company shall (and Company shall cause its Subsidiaries to) furnish to Parent all other information concerning it, its Subsidiaries and each of their respective businesses, properties and personnel as Parent or its Representatives may reasonably request; provided, however, provided that the Company shall not be required to (or to cause any Company Subsidiary to) afford such may restrict the foregoing access or furnish such and the disclosure of information to the extent that that, in the Company is advised by counsel that doing so would: good faith judgement of the Company, (i) result in the loss of attorney-client privilege any Law (provided that including any COVID-19 Measures) applicable to the Company shall use or its commercially reasonable efforts Subsidiaries requires the Company or its Subsidiaries to allow for restrict or prohibit access to any such access properties or disclosure in a manner that does not result in a loss of attorney-client privilege); information, (ii) violate any the information is subject to confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective a Third Party pursuant to a Contract to which the Company or any Company Subsidiary of its Subsidiaries is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); bound, (iii) disclosure of any such information or document could result in a competitor the loss or waiver of the Company attorney-client, work product or any Company Subsidiary receiving information that is competitively sensitive; similar legal privilege or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to such access would unreasonably disrupt the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee operations of the Company or any of its Subsidiaries; provided, further, that the Company Subsidiaries, in each case outside shall give notice to Parent of the ordinary course fact that it is withholding such information or documents and thereafter use reasonable best efforts to provide Parent such information (or as much of business such information as possible) in a manner that would not violate any such Law or confidentiality obligations, waive attorney-client, work product or similar legal privilege or cause such unreasonable disruption, as applicable (including through counsel-to-counsel disclosure, redaction or other customary procedures (and, with respect to any contractual confidentiality obligations, by taking reasonable best efforts to seek a waiver with respect to such contractual confidentiality obligations)). Notwithstanding the foregoing, Parent and in connection its Representatives will not be permitted to perform any invasive or intrusive environmental sampling of ambient or indoor air, soil, groundwater or any other environmental media with respect to any property of the Transactions Company or its Subsidiaries without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall , which may be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and withheld in the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementabsolute discretion.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Domtar CORP), Agreement and Plan of Merger (Resolute Forest Products Inc.)
Access to Information. From the date of this Agreement until the earlier (a) Upon reasonable prior notice and subject to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeapplicable law, the Company shall, and shall cause each Company Subsidiary of its Subsidiaries to, afford to the directors, officers, managers, members, partners, employees, investment bankers, advisors, consultants, accountants, counsel, lenders, agents and representatives (acollectively “Representatives”) provide to of Parent and Merger Sub and their respective Representatives reasonable access access, during normal business hours in such a manner as not during the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryEffective Time, to the all its properties, books, contracts, commitments and records, and to its officers, employees, agentsaccountants, properties, offices counsel and other facilities representatives, in each case in a manner not unreasonably disruptive to the operation of the business of the Company and its Subsidiaries, and, during such period, the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiariesshall, and (b) furnish promptly such shall cause its Subsidiaries to, make available to Parent all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives may reasonably request; provided. At the request of Parent, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for comply with its obligations under the preceding sentence by providing electronic access to such documents and information on the online data room established by the Company prior to the date hereof. Notwithstanding any other provision of this Agreement, neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure in a manner that does not result in a loss would (A) violate or prejudice the rights of its customers or employees, (B) jeopardize the attorney-client privilege); (ii) violate any confidentiality obligations privilege of the Company institution in possession or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure control of such information); , (iiiC) result in a competitor of the Company contravene, violate or breach any Company Subsidiary receiving information that is competitively sensitive; law, rule, regulation, order, judgment, decree, fiduciary duty or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein binding agreement entered into prior to the contrary, from the date of this Agreement until in the earlier ordinary course of business consistent with past practice or (D) be adverse to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee interests of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided in any pending or furnished pursuant to this Section 5.06 confidential in accordance with threatened litigation between the parties hereto over the terms of the Confidentiality this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Surewest Communications), Agreement and Plan of Merger (Consolidated Communications Holdings, Inc.)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub Sub, and their respective Representatives representatives, reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, upon prior written notice to the Company, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, thereof; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers assets and other aspects liabilities of the Company and Company Subsidiaries as Parent or its Representatives representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company believes in good faith that doing so would result in a competitor of the Company or any Company Subsidiary receiving information that is advised by counsel competitively sensitive; or, based on the advice of counsel, that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party person or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitiveparty; or (iviii) breach, contravene or violate any applicable Law (including the HSR Act or any other Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall notshall, and shall cause each of its Subsidiaries and its and their respective Representatives acting on their behalf not torepresentatives, contact any customer, partner, vendor, supplier to hold all information provided or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made furnished pursuant to this Section 5.06 shall be directed to 5.05 confidential in accordance with the person or persons designated by terms of the CompanyConfidentiality Agreement. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and all of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.065.05, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned)Company, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Meadowbrook Insurance Group Inc)
Access to Information. From Subject to compliance with contractual obligations, including the date Confidentiality Agreement, and applicable laws and regulations, following the Closing, Seller and Buyer shall afford to each other and their affiliates, authorized accountants, counsel and other designated representatives reasonable access (including using commercially reasonable efforts to give access to third parties possessing information and providing reasonable access to its own employees who are in possession of relevant information) and duplicating rights during normal business hours in a manner so as to not unreasonably interfere with the conduct of business to all non-privileged records, books, contracts, instruments, documents, correspondence, computer data and other data and information (collectively, “Information”) within the possession or control of such Party or its affiliates, relating in any material respect to the Company prior to the Closing, insofar as such access is reasonably required by the other Party. Information may be requested under this Section 10.1(a) for, without limitation, financial reporting and accounting matters, preparing financial statements, preparing, reviewing and analyzing the Closing Adjustment Statement, resolving any differences between the Parties with respect to the Closing Adjustment Statement, preparing securities law or exchange filings, prosecuting, defending or settling any litigation or insurance claim, performing this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timetransactions contemplated hereby, and all other proper business purposes. Notwithstanding the Company foregoing, no Party shall be required to provide access to or disclose Information where such access or disclosure would waive the attorney-client, work product or any similar legal privilege of such person or any of its affiliates or contravene any applicable law or binding agreement of such person or any of its affiliates; provided each Party shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryits affiliates to, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for provide such access or disclosure in a manner that does would not result in such a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company waiver or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementcontravention.
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Microstrategy Inc)
Access to Information. From (a) Upon reasonable notice and consultation with the date President of this Agreement until Company, and subject to applicable laws relating to the earlier to occur exchange of the valid termination of this Agreement in accordance with Article VII and the Effective Timeinformation, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryBank to, afford to the directors, officers, employees, agents, investment bankers, accountants, consultants, advisers, counsel and other representatives (collectively, “Representatives”) of Parent and Parent Bank, reasonable access, during normal business hours during the period prior to the Effective Time, to all its properties, offices books, contracts, commitments, records, officers, employees, accountants, counsel and other facilities of Representatives and, during such period, it shall, and shall cause the Company and the Company Subsidiaries Bank to, make available to Parent and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such Parent Bank all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives Parent Bank may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from nothing herein shall require the Company or the Company Bank to provide access to or to disclose information where such access or disclosure would, in the reasonable judgment of the Company, (A) breach any agreement with any third party in effect on the date of this Agreement until the earlier to occur Agreement, (B) constitute a waiver of the valid termination attorney-client or other privilege held by such party or (C) violate any applicable Law. If any of this Agreement the restrictions in accordance clauses (A) through (C) of the foregoing sentence shall apply, the parties will use their reasonable best efforts to make appropriate alternative disclosure arrangements, including adopting additional specific procedures to protect the confidentiality of sensitive material and to ensure compliance with Article VII applicable Laws. As soon as reasonably practicable after they become available, but in no event more than 30 days after the end of each calendar month ending after the date hereof, the Company will furnish to Parent (a) compiled, without disclosures, consolidated financial statements (including balance sheets and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee statements of income) of the Company or any of and the Company SubsidiariesBank as of and for such month then ended, in each case outside of the ordinary course of business (b) internal management financial control reports showing actual financial performance against plan and in connection with the Transactions without the Company’s prior written consent. All requests previous period and (c) except for information made pursuant any materials subject to this Section 5.06 shall attorney-client privilege or otherwise required by Law to be directed to the person or persons designated kept confidential by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned)Bank, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials reports provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each or the board of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms directors of the Confidentiality AgreementCompany Bank or any committee thereof relating to the financial performance and risk management of the Company or the Company Bank. In addition, the Company will furnish Parent with a copy of each report filed by it or the Company Bank with a Governmental Entity (other than portions thereof relating to confidential supervisory or examination materials) within three business days following the filing thereof.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Home Federal Bancorp, Inc. Of Louisiana)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub and their respective Representatives representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, upon prior written notice to the Company, to the officers, employees, agentsContracts, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, thereof; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilitiesofficers, employees, officers assets and other aspects liabilities of the Company and Company Subsidiaries as Parent or its Representatives representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party person or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party to allow for such access or disclosure and implement appropriate procedures to enable the disclosure of in a manner that does not result in any such informationviolation, breach or contravention); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitivesensitive (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure to Parent, Sub and their respective representatives in a manner that does not give rise to material competitive concerns, including through providing access or disclosure to “clean teams” of Parent, Sub and their respective representatives); or (iv) breach, contravene or violate any applicable Law (including the HSR Act or any other Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of ) (provided that the Company shall use its reasonable best efforts to allow for such access or any of the Company Subsidiariesdisclosure in a manner that does not result in a breach, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person violation or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditionedcontravention), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 5.04 confidential in accordance with the terms of the Confidentiality Agreement. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and all of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.04, from the date of this Agreement to the Effective Time, none of Parent, Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company, any environmental investigation at any real property owned or leased by the Company that involves any sampling or other intrusive investigation of air, surface water, groundwater or soil at such real property. No access or information provided pursuant to this Section 5.04 will affect any of the representations or warranties made by the Company in this Agreement or the conditions hereunder to the obligations of the parties hereto.
Appears in 1 contract
Access to Information. From (a) During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeInterim Period, the Company shall, and shall cause each Company Subsidiary to to, (ai) provide to Parent give the Purchaser and Merger Sub and their respective its authorized Representatives reasonable access during normal business hours hours, and upon at least 48 hours’ advance notice, to all properties, facilities, personnel and books and records of the Company and each Company Subsidiary in such a manner as not to interfere unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, Subsidiary and (ii) permit such inspections as the Purchaser may reasonably require and promptly furnish the Purchaser with such financial and operating data and other information with respect to the officersbusiness, employees, agents, properties, offices properties and other facilities personnel of the Company and each Company Subsidiary as the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives Purchaser may reasonably request; providedprovided that all such access shall be coordinated through the Company or its designated Representatives, however, in accordance with such reasonable procedures as they may establish; and provided further that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitiveparty; or (iviii) breach, contravene or violate any applicable Law (including any Antitrust Lawprovided that the Company shall use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in clauses (i) through (iii)). Notwithstanding anything the foregoing, nothing herein shall authorize the Purchaser or its Representatives to the contraryundertake any environmental testing involving sampling of soil, from the date of this Agreement until the earlier to occur groundwater, air or other environmental medium or similar invasive techniques at any of the valid termination properties owned, operated or leased by the Company or any Company Subsidiary, including the type of activities commonly referred to as Phase II environmental site assessments. No investigation under this Agreement in accordance with Article VII and Section 4.2(a) or otherwise shall affect the Effective Timerepresentations, Parent and Merger Sub shall notwarranties, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier covenants or employee agreements of the Company or any the conditions to the obligations of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into Parties under this Agreement, nor shall any such investigation limit or any materials provided to otherwise affect the Company Board rights or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementremedies available hereunder.
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide Prior to the Closing Date and subject to applicable Laws and Section 6.07, Parent shall be entitled, through its officers, employees and Merger Sub Representatives (including its legal advisors, financing sources and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryaccountants), to have such access to the officers, employees, agentsinformation, properties, offices businesses and other facilities operations of the Company and the Company Subsidiaries and to such examination of the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, Subsidiaries as it reasonably requests upon reasonable advance written notice. Any such access and (b) furnish promptly such information concerning examination shall be conducted during regular business hours and under circumstances that do not unreasonably interfere with the business, properties, offices normal operations of the business and other facilities, Contracts, assets, liabilitiesshall be subject to restrictions under applicable Law. The Company shall cause the officers, employees, officers consultants, agents, accountants, attorneys and other aspects Representatives of the Company and the Company Subsidiaries as to cooperate with Parent and Parent’s Representatives in connection with such access and examination, and Parent and its Representatives shall cooperate with the Company and its Representatives and shall use their commercially reasonable efforts to minimize any disruption to the business. Any disclosure during such investigation by Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (constitute any enlargement or to cause any Company Subsidiary to) afford such access additional representation or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations warranty of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result beyond those specifically set forth in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)Article IV. Notwithstanding anything herein to the contrary, from no such access or examination shall be permitted to the date extent that it (i) relates to the negotiation of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeTransactions, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee (ii) would unreasonably disrupt the operations of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person Subsidiaries or persons designated by the Company. During any visit to the business or property sites of (iii) would require the Company or any of the Company Subsidiaries, each Subsidiaries to disclose information that in the reasonable judgment and good faith of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and counsel to the Company’s , is subject to attorney-client privilege or may conflict with any applicable Law or confidentiality obligations to which the Company or any of the Company Subsidiaries is bound provided, however, that in each such case, the Company and the Company Subsidiaries’ Subsidiaries shall use commercially reasonable safety and security procedures. Notwithstanding anything efforts to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of take those actions 56 reasonable necessary so that the Company or the Company Subsidiaries is able to provide such information to Parent or a Representative of Parent (which consent efforts shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit waive its attorney-client privilege or violate any inspection of, material Contract or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementapplicable Law).
Appears in 1 contract
Access to Information. From During the period from the date of this Agreement until the earlier to occur of the valid Offer Acceptance Time and the termination of this Agreement in accordance with Article VII and pursuant to Section 8.1 (the Effective Time“Pre-Closing Period”), upon reasonable advance notice to the Company, the Company shall, and shall cause each the respective Representatives of the Company Subsidiary to (a) to: provide to Parent and Merger Sub and their respective Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s Representatives, personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Company and provide copies of such existing books, records, Tax Returns, work papers and other documents and information relating to the Company, in each case, to the extent reasonably requested by Parent and its Representatives for reasonable business purposes; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of any the business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary create material risk of damage or destruction to any third party material assets or otherwise breachproperty. Any such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to disclose or provide access to any information that could be detrimental to the Company’s business or operations or if such disclosure could, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege (so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement, fiduciary duty or violate binding agreement entered into prior to the date of this Agreement (including any then effective Contract confidentiality agreement to which the Company or any Company Subsidiary its Affiliates is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access a party) or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result increase the risk of facing any Regulatory Hurdle; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in a competitor of customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any determines doing so may be reasonably required for the purpose of complying with applicable Law (including any Antitrust Law)Laws. Notwithstanding anything herein With respect to the contrary, from the date of information disclosed pursuant to this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeSection 5.1, Parent and Merger Sub shall notcomply with, and shall cause their respective instruct Parent’s Representatives acting on their behalf not toto comply with, contact any customerall of its obligations under the Confidentiality Agreement dated December 3, partner, vendor, supplier or employee of 2019 between the Company or any of and Parent (the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent“Confidentiality Agreement”). All requests for information made pursuant to this Section 5.06 5.1 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementPersons listed on Schedule 5.1.
Appears in 1 contract
Access to Information. From the date of this Agreement until to the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Company Merger Effective Time, the Company Parties shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub the Buyer Parties and their respective Representatives reasonable access during normal business hours in such a manner as not to interfere unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, upon prior written notice to the Company, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, thereof; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers assets and other aspects liabilities of the Company and the Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company Parties shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel Parties believe in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information)party; (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law) (provided that the Company Parties shall use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in clauses (i) through (iv)). Notwithstanding anything herein Subject to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeSection 6.07(b), Parent and Merger Sub shall notshall, and shall cause each of its Subsidiaries and its and their respective Representatives acting on their behalf not toRepresentatives, contact any customer, partner, vendor, supplier to hold all information provided or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made furnished pursuant to this Section 5.06 shall be directed to 6.05 confidential in accordance with the person or persons designated by terms of the CompanyConfidentiality Agreement. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub the Buyer Parties shall, and shall cause their respective representatives Representatives accessing such properties to, comply with all applicable Laws and all of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06Agreement, from the date of this Agreement until to the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Company Merger Effective Time, none of Parent, Merger Sub the Buyer Parties or any of their respective affiliates shall conductor Representatives shall, without the prior written consent of the Company (which consent shall not be unreasonably withheldCompany, delayed or conditioned), conduct any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include Company Real Property involving any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real propertyCompany Real Property. Nothing in No investigation under this Section 5.06 6.05 or otherwise shall require affect any of the Company to permit any inspection ofrepresentations, warranties, covenants or to disclose any information regarding, the deliberations agreements of the Company Board Parties or any committee thereof with respect condition to the Merger or obligations of the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into parties hereto under this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Strategic Hotels & Resorts, Inc)
Access to Information. From the date of this Agreement until the earlier to occur So long as Avaya and its Affiliates collectively hold at least 5% of the valid termination outstanding shares of this Agreement in accordance with Article VII and the Effective TimeCompany's Common Stock, the Company shallshall furnish to Avaya such financial and operating information with respect to the business and properties of the Company as Avaya shall reasonably request. The Company's costs and expenses of providing such information shall be promptly reimbursed by Avaya upon request. Notwithstanding the foregoing, the Company shall not be obligated to, and shall not, furnish access to any information which the Company, in its reasonable judgment, believes (i) to be a trade secret or competitively sensitive information; (ii) would breach a then existing confidentiality agreement between the Company and a third party; (iii) if any law, treaty, rule or regulation of any court or administrative agency restricts such access; or (iv) the disclosure of such information would have a material adverse effect on the Company or its subsidiaries. Avaya acknowledges and agrees that Avaya will have access to material, nonpublic information concerning the Company, therefore, Avaya agrees that it will not, nor cause each another person to, enter into any agreement, contract, right, or obligation, to buy, sell or trade any securities of the Company Subsidiary based on any information provided to (a) it hereunder which is not publicly available, or provide such nonpublic information to Parent any person under circumstances in which it is reasonably foreseeable that such person may purchase, sell or trade such securities resulting in a violation of the Exchange Act, Securities Act or any other applicable law. Avaya agrees, and Merger Sub agrees to cause its Affiliates and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiarydirectors, to the officers, employees, agentsagents or representatives (collectively, properties"Representatives") to maintain the confidentiality of, offices and not disclose, any nonpublic information (whether oral, in writing or in any other facilities form) furnished by the Company, or on behalf of the Company and the Company Subsidiaries and Company, to the books and records Avaya pursuant to this Section 2.11 (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request" Confidential Information"); provided, however, such Confidential Information does not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by Avaya or any of its respective Affiliates or Representatives, or (ii) was or becomes available to Avaya or any of its respective Affiliates or Representatives on a non-confidential basis from a source other than the Company or its Affiliates or its Representatives, provided such source is not bound by a confidentiality agreement with the Company or its Affiliates or Representatives or otherwise prohibited from transmitting the Confidential Information by a contractual, legal or fiduciary obligation. In the event that Avaya is requested or required (by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand or similar process) to disclose any Confidential Information, it is agreed that Avaya will provide the Company with prompt notice of each such request so that the Company shall not be required may seek an appropriate protective order or other appropriate remedy, or both, or waive Avaya's compliance with this Section 2.11. It is further agreed that, if in the absence of a protective order or the receipt of a waiver of this Section 2.11, Avaya is nonetheless, in the opinion of its counsel, compelled to (or to cause any Company Subsidiary to) afford such access or furnish such disclose information to the extent that concerning the Company to any tribunal or else stand liable for contempt or suffer other censure or penalty, Avaya may furnish only that portion of the Confidential Information which it is advised by its counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company is legally required to be furnished and shall use exercise its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable commercial efforts to obtain the required consent of reliable assurance that confidential treatment will be accorded such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)Confidential Information. Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained The rights set forth in this Section 5.062.11, from are solely for the date benefit of this Agreement until the earlier Avaya and cannot be transferred or assigned to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, person without the prior written consent of the Company (which Company, such consent shall not to be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From and after the date of this Agreement until Distri bution Date, CFI shall, and shall cause its Subsidiaries to, afford to the earlier Company and its authorized accountants, counsel and other designated representatives (collective ly, "Representatives") reasonable access (including using reasonable efforts to occur of give access to the valid termination of this Agreement in accordance with Article VII person or firms possessing information) and duplicating rights during normal business hours to all administrative records, books, contracts and instruments, and all Company-owned computer software and computer data and other Company- owned data and information (collectively, but excluding all software not owned by the Effective TimeCompany, "Information") within CFI's or any such Subsidiary's possession or control relating to the Company or any Company Subsidiary and to any property owned by CFI that was leased or operated by the Company or any Company Subsidiary, inso far as such access is reasonably required by the Company or any Company Subsidiary. Similarly, the Company shall, and shall cause each Company Subsidiary its Subsidiaries to, afford to (a) provide to Parent CFI and Merger Sub and their respective its Representatives reasonable access (including using reasonable efforts to give access to persons or firms pos sessing Information) and duplicating rights during normal business hours in to Information within the Company's or any such a manner as not Subsidiary's possession or control relating to unreasonably interfere with CFI or any CFI Subsidiary or relating to the operation of Company prior to the Distribution Date and to any business conducted property owned by the Company that was leased or operated by CFI or any Company Subsidiary, to the officers, employees, agents, properties, offices and CFI Sub sidiary (other facilities of than the Company and the Company Subsidiaries its Subsidiaries), insofar as such access is reasonably required by CFI or any CFI Subsidiary. Information may be requested under this Article V for, without limitation, audit, account ing, claim, litigation and to the books tax purposes, as well as for purposes of fulfilling disclosure and records (including Tax Returns reporting obliga tions and supporting documentation) of the Company for performing this Agreement and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementtransac tions contemplated hereby.
Appears in 1 contract
Samples: Distribution Agreement (Consolidated Freightways Corp)
Access to Information. From and after the date of this Agreement hereof until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeClosing, the Company shall, and shall cause each of its Subsidiaries to, afford to Subscriber and to its Representatives reasonable access, upon reasonable advance notice, to all their respective properties, books, Contracts, loan tapes, commitments, personnel and records and, during such period, the Company Subsidiary shall, and shall cause each of its Subsidiaries to, furnish reasonably promptly to Subscriber (a) provide to Parent the extent not publicly available, a copy of each report, schedule, registration statement and Merger Sub other document filed by it during such period pursuant to the requirements of federal or state securities Laws or commission actions and their respective Representatives reasonable access during normal business hours (b) all other information concerning its business, assets, records, properties, Taxes, Tax Returns, and personnel as Subscriber may reasonably request (in such each case, in a manner as not to unreasonably interfere with the operation normal business operations of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities Subsidiary of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably requestCompany); provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford permit such access or furnish make such information disclosure, to the extent it determines, after consultation with counsel, that such disclosure or access would reasonably be likely to (i) violate the terms of any confidentiality agreement or other Contract with a third party (provided that the Company is advised by counsel that doing so would: shall use its commercially reasonable efforts to obtain the required consent or waiver of such third party to such access or disclosure, but in no event shall the Company be obligated to pay any amount of money to any Person to obtain the required consent of such third party to such access or disclosure); (iii) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege); or (iiiii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party applicable Law (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to provide such access or make such disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information manner that is competitively sensitive; or (iv) breach, contravene or does not violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made exchanged pursuant to this Section 5.06 5.02 shall be directed subject to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Transaction Agreement (Anghami Inc)
Access to Information. From the date of this Agreement until the earlier Subject to occur of the valid termination of this Agreement in accordance with Article VII and applicable Law, upon reasonable notice, prior to the Effective TimeDate, the Company shall, Debtors shall (and shall cause each Company Subsidiary to their Subsidiaries to) afford (ai) provide to Parent and Merger Sub the Investors and their respective Representatives (including the Ad Hoc Counsel), upon request, reasonable access access, during normal business hours in such a manner as not to unreasonably interfere and without unreasonable disruption or interference with the operation of any Company’s and its Subsidiaries’ business conducted by the Company or any Company Subsidiary, operations to the Company’s and its Subsidiaries’ officers, directors and employees, agentsand Representatives, properties, offices books, contracts and other facilities records and, prior to the Effective Date, the Debtors shall (and shall cause their Subsidiaries to) furnish promptly to such parties all information concerning the Company’s and its Subsidiaries’ business, properties and personnel as may reasonably be requested by any such party, provided, that the foregoing shall not require the Company (a) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company and would cause the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) violate any of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that obligations with respect to confidentiality to a third party if the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use have used its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of obtain, but failed to obtain, the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access inspection or disclosure and implement appropriate procedures disclosure, (b) to enable the disclosure of such information); (iii) result in a competitor disclose any legally privileged information of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company Debtors or any of their Subsidiaries as determined based on the Company Subsidiaries, in each case outside advice of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentlegal counsel, or (c) to violate any Laws. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites In furtherance of the Company or any of foregoing, but subject thereto, including the Company Subsidiariesproviso, each of Parent and Merger Sub the Debtors shall, and shall cause their respective representatives accessing such properties Subsidiaries to, comply provide the Investors with access to all applicable Laws pertinent information, memoranda and documents reasonably requested by the Ad Hoc Counsel or other Representatives of the Ad Hoc Group with respect to (x) any investigation or other Proceeding conducted by the SEC or any other Governmental Entity or (y) or any Proceeding relating to the restatement of the Company and its Subsidiaries’ pre-petition financial statements. All requests for information and access made pursuant to this Section 7.7 shall be directed to an executive officer of the Company, the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub advisors or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not such person as may be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased designated by the Company, and in no event may ’s executive officers. All information acquired by any environmental investigation include Investor or its Representatives pursuant to this Section 7.7 shall be subject to any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require confidentiality agreement between the Company to permit any inspection of, or to disclose any information regardingand such Investor. Notwithstanding the foregoing, the deliberations of Debtors shall use reasonable best efforts to cooperate with the Company Board or any committee thereof with respect Ad Hoc Counsel to provide the Merger or the Transactions or any similar transaction or transactions Investors and their Representatives (including the sale of one or more divisionsAd Hoc Counsel) with information subject to any other person, common interest agreements or privilege between the entry into this Agreement, or any materials provided to Debtors and the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementInvestors.
Appears in 1 contract
Samples: Conversion Commitment Agreement (Global Geophysical Services Inc)
Access to Information. From Subject to the date of this Confidentiality Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeapplicable Law, the Company shallshall afford Parent and its accountants, counsel and shall cause each Company Subsidiary other representatives, reasonable access (during regular business hours upon reasonable notice) during the period from the date hereof and prior to the Effective Time to (ai) provide to Parent all of the properties, books, contracts, personnel, commitments and Merger Sub records of the Company and their respective Representatives reasonable its Subsidiaries (provided, that such access during normal business hours in such a manner as shall not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities operations of the Company and its Subsidiaries) and all capitalization and equity compensation information that is necessary for Parent to promptly comply with applicable Law (to the extent such information is in the possession of the Company and its Subsidiaries or its independent registered accountants, and which shall be made available in the form that the Company or its independent registered accountants possess it) and (ii) all other information concerning the business, properties and personnel (subject to reasonable procedures as the books and records (including Tax Returns and supporting documentationparties may agree) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company its Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such may restrict the foregoing access or furnish such information to the extent that (A) any Law, treaty, rule or regulation of any Governmental Entity applicable to the Company is advised by requires such party to restrict or prohibit access to any such properties or information, (B) such disclosure would, based on the advice of outside legal counsel that doing so would: (i) result in to the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not Company, result in a loss waiver of the attorney-client privilege); , work product doctrine or any other applicable privilege applicable to such information, or (iiC) the disclosure of such information to Parent would violate any confidentiality obligations owed to a third party and such confidentiality obligations were in effect prior to the execution and delivery of this Agreement. Parent shall not use any information obtained from the Company or any Company of its Subsidiary pursuant to the access contemplated by this Section 5.4 for any purposes other than in connection with the transactions contemplated by this Agreement, and Parent will not share, provide or sell such information to any third party or otherwise breach, contravene or violate use the information in any then effective Contract to which the Company or any Company Subsidiary is party (provided manner that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) would result in a competitor violation of any applicable Law. Subject to the foregoing proviso, the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breachagrees to promptly provide to Parent and its accountants, contravene or violate any applicable Law counsel and other representatives copies of such internal financial statements (including any Antitrust Law)Tax Returns and supporting documentation) as may be reasonably requested. Notwithstanding anything herein to the contrary, Any information obtained from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made its Subsidiaries pursuant to the access contemplated by this Section 5.06 5.4 shall be directed subject to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From (a) The Company shall (and shall cause each of its Subsidiaries to) afford to directors, officers, employees, counsel, investment bankers, accountants, agents, advisors and other authorized representatives (“Representatives”) of Parent reasonable access, in a manner not materially disruptive to the date of this Agreement until the earlier to occur operations of the valid termination business of this Agreement in accordance with Article VII the Company and its Subsidiaries, during normal business hours and upon reasonable notice throughout the period prior to the Effective Time, to the properties, books and records of the Company shalland its Subsidiaries and, during such period, shall (and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company its Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (bto) furnish promptly to such Representatives all information concerning the business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects personnel of the Company and Company its Subsidiaries in each case as Parent or its Representatives may reasonably requestbe requested for reasonable purposes related to the consummation of the transactions contemplated by this Agreement; provided, however, that nothing herein shall require the Company shall not be required or any of its Subsidiaries to (or to cause disclose any Company Subsidiary to) afford such access or furnish such information to Parent or Merger Sub if such disclosure would, in the extent that reasonable judgment of the Company is advised by counsel that doing so would: Company, (i) result in cause significant competitive harm to the loss 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) constitute a waiver of the attorney-client or other privilege (provided that held by the Company or any of its Subsidiaries; provided, further, however, that (1) with respect to clauses (i), (ii) and (iii) if such information cannot be disclosed pursuant to such clauses, the Company and its Subsidiaries shall disclose as much of such information as is practicable (through redactions, summaries or other appropriate means) without violating the applicable restrictions on disclosure of such information or waiving such privilege and shall use its commercially reasonable best efforts to obtain any required consents and take such other actions (such as entering into joint defense agreements or other arrangements, as appropriate, so as to allow for such access or disclosure in a manner that does not result in a the loss of attorney-client privilege); ) to permit such disclosure and (ii2) violate nothing herein shall authorize Parent or its Representatives to undertake any confidentiality obligations invasive environmental investigations or sampling at any of the properties owned, operated or leased by the Company or its Subsidiaries. Parent agrees that it will not, and will cause its Representatives not to, use any Company Subsidiary information obtained pursuant to this Section 6.2 for any third party competitive or otherwise breach, contravene or violate any then effective Contract other purpose unrelated to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor consummation of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of transactions contemplated by this Agreement until the earlier prior to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent . The Confidentiality Agreement and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of joint defense agreement entered into between the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and parties in connection with the Transactions without transactions contemplated hereby shall apply with respect to information furnished hereunder by or on behalf of the Company, its Subsidiaries and the Company’s prior written consentRepresentatives (as defined in the Confidentiality Agreement). All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each Each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold Affiliates agrees to comply in all information provided or furnished pursuant to this Section 5.06 confidential in accordance material respects with the terms applicable Law with respect of the Confidentiality Agreementprotection of any Company Employment Data.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Western Digital Corp)
Access to Information. (a) From the date of this Agreement hereof until the earlier Effective Time and subject to occur applicable Law and the terms of any Contract existing on the date hereof to which any of the valid termination of this Agreement in accordance with Article VII Company and the Effective Timeits Subsidiaries is a party, the Company shall, and shall cause each Company Subsidiary to its Subsidiaries to, upon reasonable advance notice from Parent, (ai) provide to Parent and Merger Sub and their respective Parent’s Representatives reasonable access during normal business hours to the offices, properties, books and records of the Company and its Subsidiaries, (ii) furnish to Parent and its Representatives such existing financial and operating data and other existing information as such Persons may reasonably request, and (iii) instruct its Representatives to reasonably cooperate with Parent and its Representatives in its investigation; provided, that no investigation pursuant to this Section 7.03(a) shall affect or be deemed to modify any of the representations or warranties made by the Company. Neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure could (x) result in the loss of attorney-client or other legal privilege of the Company or any of its Subsidiaries, (y) contravene any applicable Law or requirements of any Governmental Entity, or (z) violate the confidentiality provision under any Contract entered into prior to the date of this Agreement; provided, however, that in each of the foregoing clauses (x) – (z), the Company shall use its reasonable best efforts to permit access to or to disclose such information in a manner that would not result in such loss, contravention or violation. Notwithstanding the foregoing, any such investigation shall be conducted in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations operations of the Company or any Company Subsidiary to any third party its Subsidiaries or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor any significant interference with the timely discharge by the Employees of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any its Subsidiaries of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real propertyduties. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.40
Appears in 1 contract
Samples: Agreement and Plan of Merger (China Nepstar Chain Drugstore Ltd.)
Access to Information. From the date of this Agreement until the earlier Subject to occur of the valid termination of this Agreement in accordance with Article VII Section 6.4, Company and the Effective Time, the Company shall, its Subsidiaries shall afford Purchaser and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective its Representatives reasonable access access, during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryand upon reasonable notice, to the officers, employees, representatives, agents, properties, offices and other facilities of the Company and the Company its Subsidiaries and to the their books and records records, and shall furnish Purchaser with available financial, operating and other data and information with respect to the business and properties of Company and its Subsidiaries as Purchaser may reasonably request. In exercising its rights hereunder, Purchaser shall (including Tax Returns and supporting documentationshall cause each of its Representatives to) conduct itself so as not to unreasonably interfere in the conduct of the business of Company and the Company Subsidiaries, its Subsidiaries prior to Closing. Purchaser acknowledges and (b) furnish promptly such information concerning the business, properties, offices agrees that any contact by Purchaser and other facilities, Contracts, assets, liabilitiesits Representatives with officers, employees, officers and other aspects representatives, customers or agents of the Company and its Subsidiaries hereunder shall be arranged and supervised by representatives of Company, unless Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result otherwise expressly consents in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary writing with respect to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security proceduresspecific unsupervised contact. Notwithstanding anything to the contrary set forth in this Agreement, neither Company nor any of its Affiliates shall be required to disclose to Purchaser or any agent or Representative thereof any information if doing so would be reasonably likely to violate any duty of confidentiality under any Contract or Law to which Company or any of its Affiliates is a party or to which it is subject (provided that Company shall use its reasonable best efforts to seek waivers from any such confidentiality obligations) or which it believes in good faith, after consultation with counsel, would be reasonably likely to result in a loss of the ability to successfully assert a claim of privilege (including the attorney-client and work product privileges). In addition, notwithstanding anything contained in this Section 5.06Agreement to the contrary, from prior to the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeClosing, none of Parent, Merger Sub Purchaser or its Representatives shall have any of their respective affiliates shall right to perform or conduct, without the prior written consent of the Company (which consent shall not or cause to be unreasonably withheld, delayed performed or conditioned)conducted, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of airtesting at, surface waterin, groundwater, soil on or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require underneath the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementLeased Real Property.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Allied Security Holdings LLC)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeUpon reasonable notice, the Company shall, shall (and shall cause each of the Company Subsidiary Subsidiaries to) afford to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access its officers, employees, accountants, counsel, financing sources and other representatives, access, during normal business hours in during the period prior to the earlier of the Effective Time or the date of termination of this Agreement, to all its properties, books, contracts, commitments and records and, during such a manner as not to unreasonably interfere with the operation of any business conducted by period, the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices shall (and other facilities shall cause each of the Company Subsidiaries to) furnish promptly to Merger Sub (a) a copy of each report, schedule, registration statement and the Company Subsidiaries and other document filed or received by it during such period pursuant to the books and records (including Tax Returns and supporting documentation) requirements of the Company and the Company Subsidiaries, federal securities laws and (b) furnish promptly such all other information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives Merger Sub may reasonably request; provided, however, that the Company nothing herein shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of require the Company or any of the Company SubsidiariesSubsidiaries to disclose any information to Merger Sub if such disclosure would be in violation of applicable laws or regulations of any Governmental Entity or the provisions of any confidentiality agreement to which the Company is a party. Notwithstanding the foregoing, (x) the Company may withhold any information if the Company determines in each case outside its sole discretion that the disclosure of such information would adversely effect the Company's competitive position within the industries which it conducts its business and (y) if information is not being disclosed to Merger Sub, then Company shall inform Merger Sub that such information is not being disclosed, the reasons for such non-disclosure, and a general description of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed not so disclosed, to the person extent such description does not violate or persons designated contravene any law, regulation or confidentiality agreement. Unless otherwise required by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent law and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of ParentFerrotec, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, will hold all any such information provided or furnished pursuant to this Section 5.06 confidential which is non-public in confidence in accordance with the terms provisions of the Confidentiality Agreement between the Company and Ferrotec Corporation, dated as of August 16, 1999 (the "Confidentiality Agreement").
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ferrotec Acquisition Inc)
Access to Information. From the date of this Agreement until the earlier to occur of Effective Time or the valid termination of date, if any, on which this Agreement in accordance with Article VII and the Effective Timeis validly terminated pursuant to Section 8.01, the Company shall, shall (and shall cause each the Company Subsidiary to (a) provide to Subsidiaries to), upon reasonable prior notice, give Parent and Merger Sub Sub, their officers and a reasonable number of their respective Representatives employees and its authorized Representatives, reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officersContracts, employeesbooks, agentsrecords, propertiesanalyses, projections, plans, systems, senior management, offices and other facilities and properties of the Company and the Company Subsidiaries and, during such period, the Company shall (and shall cause the Company Subsidiaries to) furnish as promptly as reasonably practicable to the books Parent and records (Merger Sub information related thereto, including Tax Returns and supporting documentation) unaudited interim financial statements of the Company and the Company Subsidiaries, updated on a monthly basis, and (b) furnish promptly such documents and information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause regarding any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract Proceeding with respect to which the Company or any Company Subsidiary is party (or becomes, or is threatened to be made, a party. The terms of the Confidentiality Agreement shall apply to any information provided that or made available to Parent or its officers, employees or other Representatives pursuant to this Section 6.05. Notwithstanding anything to the contrary set forth herein, the Company shall use its commercially reasonable efforts not be required to obtain the required consent of such third party provide access to, or to disclose information, where such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not would reasonably be expected to, contact any customerbased on the advice of outside legal counsel, partner, vendor, supplier or employee (a) jeopardize the attorney-client privilege of the Company or any of the Company Subsidiaries, or (b) contravene any Applicable Law; provided, however, that in each such case outside the Company shall use commercially reasonable efforts to make appropriate substitute arrangements under circumstances in which the restrictions of the ordinary course of business this clause would not apply. Parent agrees that it will not, and in connection with the Transactions without the Company’s prior written consent. All requests for will cause its Representatives not to, use any information made obtained pursuant to this Section 5.06 shall be directed 6.05 for any purpose unrelated to the person evaluation or persons designated by the Company. During any visit to the business or property sites consummation of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementpost-closing integration plans.
Appears in 1 contract
Samples: Agreement and Plan of Merger (AdTheorent Holding Company, Inc.)
Access to Information. From (a) During the date Interim Period, for purposes of this Agreement until furthering the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timetransactions contemplated hereby, the Company shall, and shall cause each Company Subsidiary to to, (ai) provide to give Parent and Merger Sub and their respective its authorized Representatives reasonable access during normal business hours hours, and upon reasonable advance notice, to all properties, facilities, personnel and books and records of the Company and each Company Subsidiary in such a manner as not to interfere unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, Subsidiary and (ii) permit such inspections as Parent may reasonably require and promptly furnish Parent with such financial and operating data and other information with respect to the officersbusiness, employees, agents, properties, offices properties and other facilities personnel of the Company and the each Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries Subsidiary as Parent or its Representatives may reasonably request; provided that all such access shall be coordinated through the Company or its designated Representatives, in accordance with such reasonable procedures as they may establish (including any requirements or guidelines reasonably necessary in response to or related to COVID-19); provided, howeverfurther that notwithstanding anything to the contrary herein, Parent and its affiliates shall not conduct any environmental investigation at any Company Real Property involving sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any Company Real Property; and provided, further that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes in good faith that doing so wouldwould be reasonably likely to: (i) result in the a risk of loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss waiver of attorney-client privilege), attorney work product or other legal privilege; (ii) violate any confidentiality obligations of the Company or any Company Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information)party; (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law Law; (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of provided that the Company shall use reasonable best efforts to allow for such access or any of disclosure in a manner that does not result in the Company Subsidiaries, events set out in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security proceduresclauses (i) through (iv)). Notwithstanding anything to the contrary contained in this Section 5.06Agreement, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof satisfy its obligations set forth above with respect to the Merger provision of access to information or personnel by electronic means if, and to the extent, physical access is not reasonably feasible as a result of COVID-19 or any COVID-19 Measures or would not be permitted under applicable Law. No investigation under this Section 5.2(a) or otherwise shall affect the representations, warranties, covenants or agreements of the Company or the Transactions Partnership or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided conditions to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, of the parties under this Agreement and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided not limit or furnished pursuant to this Section 5.06 confidential in accordance with otherwise affect the terms of the Confidentiality Agreementrights or remedies available hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ps Business Parks, Inc./Md)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shallwill furnish to Buyer, and shall cause each Company Subsidiary the parties to (a) provide to Parent and Merger Sub the Financing Commitments and their respective Representatives counsel, financial advisors, auditors and other authorized representatives with reasonable access during normal business hours to the Company’s and each Company Subsidiary’s personnel, properties, contracts, books and records, financial, operating and other information and any other documents and data, and furnish such Persons with copies of all such contracts, books and records, financial, operating and other information and any other documents as such Persons may reasonably request and shall reasonably cooperate with Buyer and the parties to the Financing Commitments in such a manner as not to unreasonably interfere with the operation their reasonable investigation of any business conducted by the Company or any Company Subsidiary, . Any investigation pursuant to this Section 6.02 shall be conducted in such manner as not to interfere unreasonably with the officers, employees, agents, properties, offices and other facilities conduct of the business of the Company or any Company Subsidiary. Notwithstanding the foregoing, no such Person shall have access to take physical samples of the environment or to personnel records of the Company or any Company Subsidiary relating to individual performance or evaluation records, medical histories or to other information which in the Company’s good faith opinion is sensitive or the disclosure of which could subject the Company or any Company Subsidiary to risk of liability. Without limiting the foregoing, the Company shall and shall cause the Company Subsidiaries and to cooperate with Buyer, the parties to the books Financing Commitments and records their respective counsel, financial advisors, auditors and other authorized representatives in connection with (including Tax Returns i) the preparation of an information memorandum regarding the industry, business, operations, financial projections and supporting documentation) prospects of the Company and the Company Subsidiaries, and (b) furnish promptly such including, the delivery of all information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information relating to the extent that the Company is advised Financing Commitments prepared by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations on behalf of the Company or any Company Subsidiary reasonably necessary to any third party or otherwise breachcomplete the Financing Commitments, contravene or violate any then effective Contract to which and (ii) the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent presentation of such third party to such access or disclosure information memorandum (including direct contact between senior management and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor representatives of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything Subsidiaries with the parties to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII Financing Commitments and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any participation of such real property. Nothing persons in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementmeetings).
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide Subject to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company Law and the Company Subsidiaries Confidentiality Agreement, during the period commencing on the date hereof and to ending on the books and records (including Tax Returns and supporting documentation) earlier of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); Closing Date and (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of on which this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made is terminated pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the 7.01, Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Company Subsidiaries to, upon reasonable notice, afford Parent and its Purchaser, and their respective representatives tocounsel, hold all information accountants, consultants and other authorized representatives, full and complete access during normal business hours to the employees, properties, books and records of Company and its Company Subsidiaries so that they may have the opportunity to make such investigations as they shall desire of the affairs of Company and its Company Subsidiaries; provided, however, that such investigation shall not affect the representations and warranties made by Company in this Agreement (provided that if Company can prove by a preponderance of the evidence that Parent or furnished Purchaser had Knowledge of a breach or violation of a covenant or warranty by Company as of or prior to the date of this Agreement or at Closing, as applicable, then such breach or violation shall not constitute a breach of such representation, covenant or warranty by Company). In addition, if Parent or Purchaser can prove by a preponderance of the evidence that Company had Knowledge of a breach or violation of a covenant or warranty by Parent or Purchaser as of or prior to the date of this Agreement or at Closing, as applicable, then such breach or violation shall not constitute a breach of such representation, covenant or warranty by the Parent or Purchaser. Company shall furnish as promptly as practicable to Parent and Purchaser a copy of each form, report, schedule, statement, registration statement and other document filed by it or its Company Subsidiaries during such period pursuant to this Section 5.06 confidential the requirements of federal or state securities Laws or the DGCL. Company agrees to cause its officers and employees, in accordance a manner consistent with the terms fulfillment of the Confidentiality Agreementtheir ongoing duties and obligations, to furnish such additional financial and operating data and other information and respond to such inquiries as Parent and Purchaser shall from time to time reasonably request.
Appears in 1 contract
Access to Information. From Prior to the date of this Agreement until the earlier Closing Date, Parent shall be entitled, through its officers, employees and representatives (including its legal advisors and accountants), to occur make such investigation of the valid termination properties, businesses and operations of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and its Subsidiaries and such examination of the books and records and Tax reporting positions of the Company and its Subsidiaries as it reasonably requests and to make extracts and copies of such books and records at its own expense. Any such investigation and examination shall be conducted during regular business hours and under reasonable circumstances and shall be subject to restrictions under applicable Law. The Company shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, consultants, agents, propertiesaccountants, offices attorneys and other facilities representatives of the Company and the Company its Subsidiaries to cooperate with Parent and to the books Parent's representatives in connection with such investigation and records (including Tax Returns examination, and supporting documentation) of Parent and its representatives shall cooperate with the Company and its representatives and shall use their commercially reasonable efforts to 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 Subsidiaries, and (b) furnish promptly such or any of its Subsidiaries to disclose information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of subject to attorney-client privilege or conflict with any confidentiality obligations to which the Company and Company or any of its Subsidiaries as Parent or its Representatives may reasonably requestis bound; provided, however, that the Company shall request, but shall not be required to (or to cause obtain, a waiver of any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially upon Parent's reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security proceduresrequest. Notwithstanding anything to the contrary contained in this Section 5.06herein, from prior to the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conductClosing, without the prior written consent of the Company Company, which may be withheld for any reason, (which consent i) Parent shall not be unreasonably withheldcontact any suppliers to, delayed or conditioned)customers of, the Company or any environmental investigation at Subsidiary, other than in the ordinary course of business of the Parent or any real property owned of its Affiliates with respect to matters not involving the Company or leased by the Companyits Subsidiaries, and in (ii) Parent shall have no event may any environmental investigation include any sampling right to perform invasive or other intrusive investigation subsurface investigations of air, surface water, groundwater, soil the properties or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations facilities of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementSubsidiaries.
Appears in 1 contract
Access to Information. From Subject to applicable law and existing confidentiality agreements between the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeparties, upon reasonable notice, the Company shall, shall (and shall cause its Subsidiaries to) afford the Investor and Highland Capital (and each prospective Ultimate Purchaser that executes a confidentiality agreement reasonably acceptable to the Company, which agreement will provide that, unless otherwise determined by the Company, all contact between such Ultimate Purchaser, as applicable, and the Company Subsidiary to (ashall be through the Investor or Highland Capital) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiarydirectors, to the officers, employees, agentsinvestment bankers, attorneys, accountants and other advisors or representatives, reasonable access, throughout the period prior to the Closing Date, to the Company’s employees, properties, offices books, contracts and other facilities records and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to the Investor and Highland Capital all information concerning its business, properties and personnel and from time to time as requested by the Investor or Highland Capital, meet with the Investor or Highland Capital and any representative thereof, including any Ultimate Purchaser and provide them with an update on any developments relating to the Plan, the Chapter 11 Cases or the transactions contemplated hereby, in each case, as may reasonably be requested by the Investor or Highland Capital; provided, that the foregoing shall not require the Company (i) to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company and would cause the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) violate any of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that obligations with respect to confidentiality to a third party if the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its have used commercially reasonable efforts to obtain the required consent of such third party to such access inspection or disclosure and implement appropriate procedures disclosure, (ii) to enable the disclosure of such information); (iii) result in a competitor of the Company or disclose any Company Subsidiary receiving privileged information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of its Subsidiaries or (iii) to violate any laws; provided, further, that the Company Subsidiaries, shall deliver to the Investor and Highland Capital a schedule setting in each case outside forth in reasonable detail a description of any information not provided to the ordinary course of business Investor and in connection with the Transactions without the Company’s prior written consentHighland Capital pursuant to subclauses (i) through (iii) above. All requests for information and access made pursuant to this Section 5.06 5(q) shall be directed to the Chief Restructuring Officer or such other person or persons as may be designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Delphi Highland Equity Purchase and Commitment Agreement (Highland Capital Management Lp)
Access to Information. From 3.7.1 During the date of this Agreement until the earlier Pre-Closing Period, Company will, during ordinary business hours, upon reasonable notice and subject to occur of the valid termination of this Agreement in accordance compliance with Article VII all applicable NRC rules and the Effective Time, the Company shall, regulations and shall cause each Company Subsidiary to other applicable Laws: (a) provide to Parent allow Contractor and Merger Sub and their respective Representatives its representatives reasonable access during normal business hours to Company management personnel engaged in the management of the Assets, the CR-3 Facility, the NRC-Licensed Site and the Business Books and Records; (b) permit Contractor to make such reasonable inspections thereof as Contractor may reasonably request; (c) furnish Contractor with such other information with respect to the Assets or the CR-3 Facility or the NRC-Licensed Site that is in Company’s possession, as Contractor may from time to time reasonably request; and (d) furnish Contractor a copy of each material report, schedule or other document filed or received by it with respect to the Assets or the CR-3 Facility with the NRC or any other Governmental Authority having jurisdiction over any of the Assets or the CR-3 Facility; provided, however, that (i) any such investigation shall be conducted in such a manner as not to interfere unreasonably interfere with the operation ownership, use or management of any business conducted by the other activities of Company or its other contractors at the NRC-Licensed Site; (ii) Company shall not be required to provide Contractor any Company Subsidiary, information which would reasonably be expected to the officers, employees, agents, properties, offices and other facilities result in a waiver of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably requestattorney-client privilege; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss waiver of the attorney-client privilege (including, if applicable, by entering into a common interest or similar agreement to preserve such privilege); and (iiiii) violate Company need not supply Contractor with any confidentiality obligations of the information that Company is legally or any Company Subsidiary to any third party or otherwise breachcontractually prohibited from supplying; provided, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided however, that the Company shall use its commercially reasonable efforts (not including payment of any money or granting of any concessions) to obtain any consents necessary in order to provide Contractor with the required consent of such third party to such access or disclosure and implement appropriate procedures to enable information from the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein contractual counterparty to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing extent such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementprohibition exists.
Appears in 1 contract
Samples: Decommissioning Services Agreement (Progress Energy Inc)
Access to Information. From (a) Prior to the date of this Agreement until the Closing or earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, the Company shall, and shall cause each the Company Subsidiary to Subsidiaries to, provide Buyer and its Representatives, upon reasonable advance notice and under reasonable circumstances, (ax) provide to Parent and Merger Sub and their respective Representatives with reasonable access during normal business hours to the officers, books and records of the Acquired Companies and (y) such information concerning the Acquired Companies’ businesses, properties and personnel as Buyer and its Representatives may reasonably request and which is in the possession of the Company or otherwise available to the Company without imposing a material burden on the Company; provided, however, that (i) any such access and activities shall be conducted in a manner as not to unreasonably interfere with the operation business or operations of any business conducted by the Company or any Company Subsidiary, Acquired Companies and shall be subject to the officersConfidentiality Agreement and (ii) without the prior written consent of the Company, employeeswhich may be withheld for any reason in the sole and absolute discretion of the Company, agents, properties, offices Buyer and other its Representatives shall have no right to perform invasive or subsurface investigations of the properties or facilities of the Company and the Company Subsidiaries and Acquired Companies. Notwithstanding anything herein to the books and records (including Tax Returns and supporting documentation) contrary, none of the Company Acquired Companies shall be required to provide such access or disclose any information to Buyer and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may if the Company, upon the advice of outside counsel, believes that doing so would reasonably requestbe expected to (A) result in a waiver of attorney-client privilege, work product doctrine or similar privilege or (B) violate any Law which any Acquired Company is subject to; provided, however, that (1) prior to withholding any access or information pursuant to the foregoing, the Company shall not be required to (or to cause any Company Subsidiary to) afford such notify Buyer in writing of the nature of the access or furnish such information to the extent that the Company is advised by counsel that doing so would: being withheld and (i2) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts take any actions as may reasonably be requested by Buyer to implement alternative arrangements to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); the events set out in clauses (iiA) violate any confidentiality obligations or (B) of the Company foregoing (including entering into confidentiality agreements or any Company Subsidiary joint defense agreements and redacting parts of documents or preparing “clean” summaries of information in order to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to allow Buyer such access or disclosure and implement appropriate procedures information to enable the disclosure of such information); (iii) result in a competitor of fullest extent reasonably practicable under the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Lawcircumstances). Notwithstanding anything herein to the contraryobligations set forth in this Section 6.1(a), from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company may withhold from Buyer and its Representatives such portions of documents or any information relating to pricing or other matters that are highly sensitive if the exchange of such documents (or portions thereof) or information as determined by Company’s outside counsel, would reasonably be considered anti-competitive (but in such case the Company Subsidiaries, will consider in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentgood faith providing such information pursuant to a customary “clean team” arrangement). All requests for information made pursuant to this Section 5.06 such access shall be directed to such Person as the person or persons designated by Company may designate in writing from time to time (collectively, the Company“Designated Contacts”). During any visit Other than the Designated Contacts, prior to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conductClosing, without the prior written consent of the Company (which consent shall not may be unreasonably withheld, delayed or conditionedwithheld for any reason in the sole and absolute discretion of the Company), neither Buyer, its Affiliates or their respective Representatives shall contact any environmental investigation at non-executive employee, contractors, supplier, customer, landlord or other material business relationship of any real property owned or leased by the Acquired Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of aireach case, surface water, groundwater, soil or anything else at or in connection with any of their capacities as such real property. Nothing in this Section 5.06 shall require regarding the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementTransactions.
Appears in 1 contract
Access to Information. From During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimePre-Closing Period, the Company shallshall afford Parent, its Representatives and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives the Financing Sources reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryhours, upon reasonable advance notice, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) senior management of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably requestCompany; provided, however, that the Company shall not be required may restrict or otherwise prohibit access to (any documents or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that (a) any applicable Law requires the Company to restrict or otherwise prohibit access to such documents or information, (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information, (c) access to a Contract to which the Company or a Subsidiary of the Company is advised by counsel that doing so would: a party or otherwise bound would violate or cause a default under, or give a third party the right terminate or accelerate the rights under, such Contract, or (id) result could reasonably be expected to jeopardize the health and safety of any Representative of the Company or its Subsidiaries, including in light of any pandemic or epidemic (including COVID-19), any Pandemic Measures, any Protest Event, or any Protest Measures. In the loss of attorney-client privilege (provided event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its commercially reasonable efforts to allow for communicate the applicable information to Parent in a way that would not violate the applicable Law, Contract or obligation or to waive such a privilege. Any investigation conducted pursuant to the access or disclosure contemplated by this Section 4.5 shall be conducted in a manner that does not result in a loss unreasonably interfere with the conduct of attorney-client privilege); (ii) violate any confidentiality obligations the business of the Company or any Company Subsidiary its applicable Subsidiaries or create a material risk of damage or destruction to any third party property or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor assets of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)such Subsidiaries. Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur The terms and conditions of the valid termination of this Confidentiality Agreement in accordance with Article VII and the Effective Time, shall apply to any information obtained by Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or its Representatives in connection with any of such real propertyinvestigation conducted pursuant to the access contemplated by this Section 4.5. Nothing in this Section 5.06 4.5 or elsewhere in this Agreement shall be construed to require the Company or any Representatives of any of the foregoing to permit prepare any inspection ofreports, analyses, appraisals, opinions or other information. Notwithstanding the foregoing, any access to disclose any information regarding, the deliberations offices of the Company Board or any committee thereof with respect and its Subsidiaries shall be subject to the Merger or Company’s reasonable security measures and insurance requirements and the Transactions or any similar transaction or transactions (including requirements of the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, applicable Lease Agreements and shall cause each of its Subsidiaries and its and their respective representatives tonot include the right to perform any “invasive” testing or soil, hold all information provided air or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementgroundwater sampling, including, without limitation, any Phase II environmental assessment.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Absolute Software Corp)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid Effective Time or the termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, upon reasonable notice, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, afford to the officers, employees, agentsaccountants, counsel, financial advisors and other representatives of Buyer reasonable access during normal business hours, to the Company's and its Subsidiaries' properties, offices books, contracts, commitments and other facilities of records located at its corporate headquarters in Schaumburg, Illinois and its corporate-level officers, management employees, accountants and representatives and, during such period, the Company shall furnish promptly to Buyer, consistent with its legal obligations (and subject to existing confidentiality and similar non-disclosure obligations and the Company Subsidiaries preservation of attorney client and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiarieswork product privileges), and (b) furnish promptly such all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives Buyer may reasonably request; providedPROVIDED, howeverHOWEVER, that the Company shall not be required to (or to cause may restrict any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in a Governmental Entity expressly requires the loss Company or any of attorney-client privilege its Subsidiaries to restrict access to any properties or information reasonably related to any such contract on the basis of applicable laws and regulations, (provided ii) any law, treaty, rule or regulation of any Governmental Entity applicable to the Company or any of its Subsidiaries requires the Company or any of its Subsidiaries to restrict access to any properties or information, or (iii) such access would unreasonably disrupt or interfere with the operations or business of the Company; and PROVIDED FURTHER that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent or release of the parties to confidentiality and non-disclosure agreements which authorize the delivery of the confidential or non-disclosable information to Buyer. Buyer acknowledges that any such third party to such access information received by Buyer or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor its representatives from or on behalf of the Company or any pursuant to this Section 4.2 shall be deemed received pursuant to, and shall be held in confidence by Buyer and its representatives to the extent required by, and in accordance with, the provisions of that certain letter agreement, dated August 3, 1999 (as amended, the "CONFIDENTIALITY AGREEMENT"), between the Company Subsidiary receiving information that is competitively sensitive; or (iv) breachand Buyer, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein which Confidentiality Agreement shall, notwithstanding language in such Confidentiality Agreement to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement remain in accordance with Article VII full force and the Effective Time, Parent and Merger Sub shall not, effect and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection be incorporated herein by reference with the Transactions without same effect as if fully set forth herein; provided Buyer may use any such information for the Company’s prior written consent. All requests for information made pursuant purposes referred to this in Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned4.3(d), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Dobson Communications Corp)
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books books, Contracts and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries), and (b) furnish promptly such information information, including financial and operational data, concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by its outside counsel in writing that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in Parent agrees that no breach of this Section 5.06 shall require by the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each deemed to exist if the action or omission that would otherwise constitute a breach of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance is taken or omitted to be taken by or at the direction or with the terms actual knowledge of the Confidentiality Agreementany Dual Representative.
Appears in 1 contract
Access to Information. From (a) During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeInterim Period, the Company shall, and shall cause each Company Subsidiary to to, (ai) provide to give Parent and Merger Sub and their respective its authorized Representatives reasonable access during normal business hours hours, and upon reasonable advance notice, to all properties, facilities, personnel and books and records of the Company and each Company Subsidiary in such a manner as not to interfere unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, Subsidiary and (ii) permit such inspections as Parent may reasonably require and promptly furnish Parent with such financial and operating data and other information with respect to the officersbusiness, employees, agents, properties, offices properties and other facilities personnel of the Company and the each Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries Subsidiary as Parent or its Representatives may reasonably request; provided that all such access shall be coordinated through the Company or its designated Representatives, in accordance with such reasonable procedures as they may establish; provided, howeverfurther, that notwithstanding anything to the contrary herein, Parent and its affiliates shall not conduct any environmental investigation at any Company Real Property involving sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any Company Real Property; and provided, further, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes in good faith that doing so would: would be reasonably likely to (i) result in the a risk of loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss waiver of attorney-client privilege); , attorney work product or other legal privilege, (ii) violate any confidentiality obligations of the Company or any Company Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); party, (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; , or (iv) breach, contravene or violate any applicable Law (including any Antitrust Lawprovided that the Company shall use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in clauses (i) through (iv)). Notwithstanding anything herein to No investigation under this Section 5.2(a) or otherwise shall affect the contraryrepresentations, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timewarranties, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier covenants or employee agreements of the Company or any the Partnership or the conditions to the obligations of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to parties under this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, Agreement and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and not limit or otherwise affect the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub rights or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementremedies available hereunder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (GPT Operating Partnership LP)
Access to Information. From (a) Subject to applicable Law, from the date of this Agreement hereof until the earlier to occur of Closing Date or the valid termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, the Company shallhereby agrees that it shall ensure that, upon reasonable notice, the Company and shall cause each Company Subsidiary to its Subsidiaries (ai) provide will afford to Parent and Merger Sub and their respective its Representatives such reasonable access during normal business hours in such a manner as to its books, records, properties, personnel (but not to unreasonably interfere with including directors who are not employees of the operation of any business conducted Company), accountants and other professionals retained by the Company or any Company Subsidiary, and to such other information as Parent may reasonably request (including for purposes of determining withholding obligations under Section 2.2(h)); and (ii) will furnish Parent such financial and operating data and other information with respect to the officers, employees, agents, properties, offices business and other facilities properties of the Company and as the Company Subsidiaries prepares and to the books and records (including Tax Returns and supporting documentation) compiles for members of the Company Board in the ordinary course and the Company Subsidiaries, as Parent may from time to time reasonably request. All requests for access and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, shall be coordinated through senior corporate officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; providedCompany. The foregoing notwithstanding, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to if it would unreasonably disrupt the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations operations of the Company or any of its Subsidiaries, would in the reasonable judgment of the Company Subsidiary to cause a violation of any third party or otherwise breach, contravene or violate any then effective Contract agreement to which the Company or any of its Subsidiaries is a party, would in the reasonable judgment of the Company Subsidiary is party cause a risk of a loss of privilege or trade secret protection to the Company or any of its Subsidiaries (provided that the Company and Parent shall use its commercially reasonable efforts cooperate in good faith to obtain the required consent of such third party to such access or disclosure design and implement appropriate alternative procedures to enable Parent to evaluate any such documents or other information without causing a waiver or loss of privilege) or would in the disclosure of such information); (iii) result in a competitor reasonable judgment of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate constitute a violation of any applicable Law or contravene any applicable antitrust principles, nor shall Parent or any of its representatives be permitted to perform any on-site procedure (including any Antitrust Law). Notwithstanding anything herein on-site environmental procedure) with respect to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee property of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, its Subsidiaries without the prior written consent of the Company. The Company (which consent shall not be unreasonably withheldfurnish, delayed or conditioned), any environmental investigation at any real property owned or leased to the extent prepared by the CompanyCompany in the ordinary course of business, for the period beginning after the date of this Agreement and in no event may any environmental investigation include any sampling or other intrusive investigation ending at the Effective Time, as soon as practicable after the end of aireach month, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations a copy of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms monthly internally prepared financial statements of the Confidentiality AgreementCompany.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Young Innovations Inc)
Access to Information. From the date of this Agreement hereof until the earlier to occur of the valid Effective Time and the termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, the Company shall, shall (and shall cause each of its Subsidiaries to) afford to officers, employees, counsel, investment bankers, financing sources, accountants and other authorized representatives (“Representatives”) of Parent reasonable access, in a manner not disruptive to the operations of the business of the Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access its Subsidiaries, during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryand upon reasonable notice, to the officers, employees, agents, properties, offices books and other facilities records of the Company and the Company its Subsidiaries and, during such period, shall (and to the books and records (including Tax Returns and supporting documentation) shall cause each of the Company and the Company Subsidiaries, and (bits Subsidiaries to) furnish promptly to such Representatives all information concerning the business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects personnel of the Company and Company Subsidiaries its Subsidiaries, in each case as Parent or its Representatives may reasonably requestbe requested and necessary to consummate the Financing and the Merger; provided, however, that the Company nothing herein shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of require the Company or any of its Subsidiaries to disclose any information to Parent or Merger Sub if such disclosure would, in the reasonable judgment of the Company Subsidiary and after taking into account the provisions of applicable non-disclosure agreements, (a) cause significant competitive harm to the Company or its Subsidiaries if the Merger were not consummated, (b) violate applicable Law or any third party request or otherwise breach, contravene requirement of any Governmental Entity or violate the provisions of any then effective Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (ivc) breach, contravene jeopardize any attorney-client or violate other legal privilege. If any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of material is withheld by the Company or any of its Subsidiaries pursuant to the preceding sentence, then the Company Subsidiaries, in each case outside will so inform Parent of the ordinary course general nature of business what is being withheld. Parent agrees that it will not, and in connection with the Transactions without the Company’s prior written consent. All requests for will cause its Representatives not to, use any information made obtained pursuant to this Section 5.06 shall be directed 6.2 for any competitive or other purpose unrelated to the person or persons designated by the Company. During any visit to the business or property sites consummation of the Company Merger or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and Financing. The Confidentiality Agreement shall cause their respective representatives accessing such properties to, comply apply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything respect to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased information furnished hereunder by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its their Representatives and their respective representatives to, hold all information provided or furnished pursuant to shall survive termination of this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeUpon reasonable notice, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective its Representatives reasonable access access, during normal business hours in such a manner as not throughout the period prior to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryFirst Effective Time, to the officers, employees, agents, Company Entities’ properties, offices books, records and other facilities personnel, and during such period, the Company shall cause to be furnished promptly to Parent, its Representatives and the Financing Sources all reasonably available information concerning the Company Entities and their respective businesses (including financial information prepared for the Company’s management in the Ordinary Course of Business and information related to planned capital expenditures), as Parent or the Financing Sources may reasonably request, including copies of such information as is necessary for the operation, ownership and management of the Company Entities’ business or information as may be required to permit Parent to satisfy its obligations to any Governmental Authority following the First Effective Time (but in the case of the Financing Sources, only if relevant to the Financing); provided, that Parent and the Company Subsidiaries and Financing Sources shall not use any information obtained under this Section 5.6 for any purpose unrelated to the books and records (including Tax Returns and supporting documentation) of Mergers or the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably requesttransactions contemplated hereby; provided, however, that the Company shall not be required to (or to cause provide any Company Subsidiary to) afford such access or furnish such information to that in the extent that reasonable, good-faith judgment of the Company is advised by counsel that doing so would: would (ia) be reasonably likely to result in the loss disclosure of attorney-client privilege any trade secrets of third parties or the violation of any Law or any material Contract to which any Company Entity is a party or by which any Company Entity is bound (provided including any confidentiality obligation of any Company Entity); provided, that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to provide such access or disclosure to the extent permissible under applicable Law, or (b) jeopardize or undermine protections afforded any Company Entity under any legal privilege (including attorney-client privilege); provided, that the Company shall use commercially reasonable efforts to allow for such access or disclosure to the maximum extent that does not result in a loss of such privilege; provided, further, that (i) the Company shall promptly notify Parent in writing if any reason described in the foregoing clauses (a) or (b) is applicable to any request for information and implement appropriate procedures (ii) if any such access or information is limited for the reasons described in the foregoing clauses (a) or (b), Parent and the Company shall use their respective commercially reasonable efforts to enable establish a process that (through use of steps such as, without limitation, redactions, provision of information to counsel to review and summarize for Parent or use of a “clean room” environment for analysis and review of information by joint integration teams in coordination with counsel and the Company) shall provide Parent with timely access to the fullest extent possible to the substance of the information described in this Section 5.6. Upon reasonable notice, Parent shall provide the Company and its Representatives reasonable access, during normal business hours throughout the period prior to the First Effective Time, to the Parent Entities’ books, records and personnel; provided, that the Company shall not use any information obtained under this Section 5.6 for any purpose unrelated to the Mergers or the other transactions contemplated hereby; provided, however, that Parent shall not be required to provide any such access or information that in the reasonable, good-faith judgment of Parent would (A) be reasonably likely to result in the disclosure of such informationany trade secrets of third parties or the violation of any Law or any material Contract to which any Parent Entity is a party or by which any Parent Entity is bound (including any confidentiality obligation of any Parent Entity); provided, that Parent shall use commercially reasonable efforts to obtain the required consent of such third party to provide such access or disclosure to the extent permissible under applicable Law, or (iiiB) jeopardize or undermine protections afforded any Parent Entity under any legal privilege (including attorney-client privilege); provided, that Parent shall use commercially reasonable efforts to allow for such access or disclosure to the maximum extent that does not result in a competitor loss of such privilege; provided, further, that (1) Parent shall promptly notify the Company in writing if any reason described in the foregoing clauses (A) or (B) is applicable to any request for information and (2) if any such access or information is limited for the reasons described in the foregoing clauses (A) or (B), the Company and Parent shall use their respective commercially reasonable efforts to establish a process that (through use of steps such as, without limitation, redactions, provision of information to counsel to review and summarize for the Company or any use of a “clean room” environment for analysis and review of information by joint integration teams in coordination with counsel and Parent) shall provide the Company Subsidiary receiving with timely access to the fullest extent possible to the substance of the information that is competitively sensitive; or (iv) breachdescribed in this Section 5.6. All information obtained by Parent, contravene or violate any applicable Law (including any Antitrust Law)the Company and their respective Representatives under this Section 5.6 shall be treated as “Evaluation Material” for purposes of the Confidentiality Agreement. Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub each Party agrees that it shall not, and shall cause their respective its Representatives acting on their behalf not to, contact prior to the First Effective Time, use any customer, partner, vendor, supplier information obtained under this Section 5.6 for any competitive or employee other purpose unrelated to the consummation of the Company or any Mergers; provided, however, that prior to the earlier of the Company SubsidiariesFirst Effective Time, nothing in each case outside of this Section 5.6 shall limit any customary disclosures made by Parent and its Affiliates to the ordinary course of business Financing Sources, rating agencies, prospective Financing Sources, underwriters, initial purchasers, solicitation agents, existing lenders (and related agents) or otherwise in connection with efforts or activities by Parent or the Transactions without Financing Sources to obtain the Company’s prior written consent. All requests for Financing; provided, further, that the recipients of such information made and any other information contemplated to be provided by the Company pursuant to this Section 5.06 shall be directed 5.6, agree to the person or persons designated by the Companycustomary confidentiality arrangements, including “click through” confidentiality agreements and confidentially provisions contained in customary bank books and offering memoranda. During any visit to the business or property sites Each of the Company or and Parent may, as each deems advisable and necessary, reasonably designate any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials competitively sensitive material provided to the Company Board other Party under Section 5.6 or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential 5.7 as “Clean Team Information” in accordance with the terms of the Confidentiality Clean Team Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Performance Food Group Co)
Access to Information. From Prior to the date of this Agreement until the earlier Closing, Purchaser shall be entitled, through its officers, employees and representatives (including its legal advisors and accountants), to occur make such investigation of the valid termination properties, businesses and operations of this Agreement in accordance with Article VII the Companies and such examination of the Effective Time, books and records of the Company shall, Companies as it reasonably requests and to make extracts and copies of such books and records. Any such investigation and examination shall be conducted during regular business hours upon reasonable advance notice and under reasonable circumstances and shall be subject to restrictions under applicable Law. The Selling Stockholder shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their its respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, consultants, agents, propertiesaccountants, offices attorneys and other facilities of the Company representatives and the Company Subsidiaries Companies to cooperate with Purchaser and to the books Purchaser’s representatives in connection with such investigation and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiariesexamination, and (b) furnish promptly such information concerning Purchaser and its representatives shall cooperate with the businessSelling Stockholder, properties, offices the Companies and other facilities, Contracts, assets, liabilities, employees, officers their representatives and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially their reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate minimize any confidentiality obligations disruption to the business of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of Companies in connection with such third party to such access or disclosure investigation and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)examination. Notwithstanding anything herein to the contrary, from no such investigation or examination shall be permitted to the date of this Agreement until extent that Selling Stockholder or the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company SubsidiariesCompanies determines, in each case outside its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third-party, jeopardize the ordinary course protection of business and in connection with an attorney-client privilege, or expose the Transactions without the Company’s prior written consent. All requests Companies to risk of liability for information made pursuant to this Section 5.06 shall be directed to the person disclosure of sensitive or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedurespersonal information. Notwithstanding anything to the contrary contained in this Section 5.06herein, from prior to the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conductClosing, without the prior written consent of the Company Selling Stockholder, which may be withheld for any reason, (which consent i) Purchaser shall not be unreasonably withheldcontact any suppliers to, delayed or conditioned)customers of, any environmental investigation at any real property owned the Selling Stockholder or leased by the CompanyCompanies, and in (ii) Purchaser shall have no event may any environmental investigation include any sampling right to perform invasive or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations subsurface investigations of the Company Board properties or any committee thereof with respect to facilities of the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials Companies. All information provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries Purchaser and its Affiliates and their respective representatives to, hold all information provided or furnished Representatives pursuant to this Agreement (including pursuant to Section 5.06 7.4) shall be considered confidential in accordance with and be subject to the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From The parties acknowledge that Buyer and the date Company have previously executed a Mutual Non-Disclosure Agreement, dated as of this April 21, 2008 (the “Confidentiality Agreement”), which Confidentiality Agreement until the earlier to occur of the valid termination of this Agreement shall continue in full force and effect in accordance with Article VII and its terms, except as expressly waived or modified as provided herein or therein. Until the Effective Time, the Company shall, and shall cause each Company Subsidiary of its Subsidiaries to, afford to (a) provide to Parent Buyer’s officers, employees, accountants, counsel, and Merger Sub and their respective Representatives other Representatives, reasonable access access, upon reasonable notice, during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss unreasonably disrupt or interfere with business operations, to all of attorney-client privilege); (ii) violate any confidentiality obligations of its properties, books, contracts, commitments, management personnel and records as Buyer shall reasonably request, and, during such period, the Company shall (and shall cause each of its Subsidiaries to) furnish promptly to Buyer (x) a copy of each report, schedule, registration statement and other document filed or any Company Subsidiary received by it during such period pursuant to the requirements of federal or state securities laws and (y) all other information concerning its business, finances, operations, properties, assets and personnel as Buyer may reasonably request, in each case, subject to any third party or otherwise breach, contravene or violate any then effective Contract to which restrictions contained in the Company or any Company Subsidiary is party (Confidentiality Agreement; provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent foregoing shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regardingthat, in the reasonable judgment of the Company, would result in the disclosure of any trade secrets of third parties or otherwise privileged information so long as the existence of such trade secrets of third parties or privileged information and the lack of disclosure thereof is identified to Buyer. During the Pre-Closing Period, the deliberations Company shall promptly provide Buyer with copies of: (i) any written materials or communications sent by or on behalf of the Company Board to its stockholders; (ii) any notice, document or any committee thereof with respect other communication relating to the Merger sent by or on behalf of any of the Transactions Company or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries to any customer, supplier, employee, or other party with whom the Company or any of its Subsidiaries has a contractual relationship; provided that a form of such notice, document or other communication shall suffice where such notice, document or other communication is substantially identical but for the addressee; (iii) any notice, report or other document filed with or sent to any Governmental Entity on behalf of the Company or any of its Subsidiaries in connection with the Merger; and (iv) any material notice, report or other document received by the Company or any of its subsidiaries from any Governmental Entity in connection with the Merger or otherwise. Buyer will hold, and their respective representatives toinstruct all such officers, hold all employees, accountants, counsel, and other Representatives to hold, any such information provided or furnished pursuant to this Section 5.06 confidential that is nonpublic in confidence in accordance with the terms of the Confidentiality AgreementAgreement or otherwise.
Appears in 1 contract
Access to Information. From and after the date of this Agreement until Distribution Date, CFI shall, and shall cause its Subsidiaries to, afford to the earlier Company and its authorized accountants, counsel and other designated representatives (collectively, "Representatives") reasonable access (including using reasonable efforts to occur of give access to the valid termination of this Agreement in accordance with Article VII person or firms possessing information) and duplicating rights during normal business hours to all administrative records, books, contracts and instruments, and all Company- owned computer software and computer data and other Company- owned data and information (collectively, but excluding all software not owned by the Effective TimeCompany, "Information") within CFI's or any such Subsidiary's possession or control relating to the Company or any Company Subsidiary and to any property owned by CFI that was leased or operated by the Company or any Company Subsidiary, insofar as such access is reasonably required by the Company or any Company Subsidiary. Similarly, the Company shall, and shall cause each Company Subsidiary its Subsidiaries to, afford to (a) provide to Parent CFI and Merger Sub and their respective its Representatives reasonable access (including using reasonable efforts to give access to persons or firms possessing Information) and duplicating rights during normal business hours in to Information within the Company's or any such a manner as not Subsidiary's possession or control relating to unreasonably interfere with CFI or any CFI Subsidiary or relating to the operation of Company prior to the Distribution Date and to any business conducted property owned by the Company that was leased or operated by CFI or any Company Subsidiary, to the officers, employees, agents, properties, offices and CFI Subsidiary (other facilities of than the Company and the Company Subsidiaries its Subsidiaries), insofar as such access is reasonably required by CFI or any CFI Subsidiary. Information may be requested under this Article V for, without limitation, audit, accounting, claim, litigation and to the books tax purposes, as well as for purposes of fulfilling disclosure and records (including Tax Returns reporting obligations and supporting documentation) of the Company for performing this Agreement and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementcontemplated hereby.
Appears in 1 contract
Samples: Distribution Agreement (Consolidated Freightways Inc)
Access to Information. From the date of this Agreement hereof until the earlier Effective Time and subject to occur of the valid termination of this Agreement in accordance with Article VII Applicable Law and the Effective TimeConfidentiality Agreement, the Company shallwill, and shall will cause each Company Subsidiary to its Subsidiaries to, upon receipt of reasonable notice, (ad) provide to Parent and Merger Sub and their respective its Representatives reasonable and prompt access during normal business hours in such a manner as not to unreasonably interfere with (1) all of the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices facilities, books, agreements, records, customers, suppliers and other facilities Employees of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company its Subsidiaries, and (b2) furnish promptly such all other information concerning the business, finances, properties, offices products, services, ongoing disputes, litigation, technology and other facilities, Contracts, assets, liabilities, employees, officers and other aspects personnel of the Company and Company its Subsidiaries as Parent or its Representatives may reasonably request; provided, however, provided that the Company shall not be required reserves the right to withhold any information or access rights set forth in clauses (or A) and (B) above if the Company determines in good faith based on the advice of counsel that access to cause any Company Subsidiary to) afford such access or furnish such information or Persons could reasonably be expected to violate Applicable Law or adversely affect the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that between the Company shall and its counsel, and (ii) instruct its Representatives to cooperate with Parent in its investigation of the Company and its Subsidiaries. Subject to Applicable Law and the Confidentiality Agreement, the Company will, and will cause its Subsidiaries to, provide Parent and its Representatives copies of its internal financial statements promptly upon request and use its commercially reasonable efforts to allow for cause KPMG LLP to furnish its work papers in respect of the Company and its Subsidiaries. Any investigation pursuant to this Section 6.03 shall be conducted in such access manner as not to interfere unreasonably with the conduct of the business of the Company and its Subsidiaries. No information or disclosure knowledge obtained in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations investigation pursuant to this Section 6.03 or otherwise shall affect or be deemed to modify or qualify any representation or warranty of the Company or any Company Subsidiary the conditions to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor obligations of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein parties to consummate the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementMerger.
Appears in 1 contract
Access to Information. From and after the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeAgreement, the Company shallshall (i) give Purchaser and its authorized accountants, investment bankers, counsel and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives other representatives reasonable access (during normal regular business hours in such a manner as not upon reasonable notice and after consultation) to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the its officers, key employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contractsand to all books, assetscontracts, liabilities, employees, officers commitments and other aspects records (including Tax returns) of the Company and Company its Subsidiaries and cause the Company's and its Subsidiaries' independent public accountants to provide access to their work papers and such other information as Parent or its Representatives Purchaser may reasonably request; , (ii) permit Purchaser to make such inspections as they may reasonably require, (iii) cause its executive officers and those of its Subsidiaries to furnish Purchaser with such financial and operating data and other information with respect to the business, properties and personnel of the Company and its Subsidiaries as Purchaser may from time to time reasonably request and (iv) furnish promptly to Purchaser a copy of each report, schedule and other document filed or received by the Company during such period pursuant to the requirements of the U.S. federal or state securities laws, provided, however, that the Company foregoing shall not be required require the Company to (permit any inspection, or to cause disclose any Company Subsidiary to) afford such access or furnish such information to information, which in the extent that reasonable judgment of the Company is advised by counsel that doing so would: (i) would result in the loss disclosure of attorney-client privilege (provided that any trade secrets of third parties or violate any obligation of the Company with respect to confidentiality if the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially have used reasonable efforts to obtain the required consent of such third party to such access inspection or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentdisclosure. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites an executive officer of the Company or such person as may be designated by any of such officer. If the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of transactions contemplated by this Agreement until the earlier to occur of the valid are not consummated, then upon termination of this Agreement in accordance with Article VII Agreement, Purchaser shall as promptly as practicable collect and deliver to the Effective Time, none of Parent, Merger Sub Company all documents obtained by it or any of its representatives then in their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), possession and any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementcopies thereof.
Appears in 1 contract
Samples: Exchange Offer Agreement (United Pan Europe Communications Nv)
Access to Information. (a) From the date of this Agreement hereof until the earlier to occur of the valid Effective Time and termination of this Agreement in accordance with pursuant to Article VII VIII and subject to applicable Law and the Effective TimeConfidentiality Agreement, upon reasonable advance notice in writing from Parent, the Company shall, and shall cause each Company Subsidiary to (ai) provide to Parent (and Merger Sub Parent’s officers, directors, employees, accountants, consultants, financial and their respective Representatives legal advisors, agents, financing sources (including potential sources) and other authorized representatives of Parent and such other parties, collectively, “Representatives”) reasonable access during normal business hours to the offices, properties, books and records of any Group Company, (ii) furnish to Parent and its Representatives such existing financial and operating data and other existing information as such persons may reasonably request in writing, and (iii) instruct its and its Subsidiaries’ employees, legal counsel, financial advisors, auditors and other Representatives to reasonably cooperate with Parent and its Representatives in their investigation. Notwithstanding the foregoing, any such investigation shall be conducted in such a manner as not to interfere unreasonably interfere with the operation business or operations of the Company or its Subsidiaries or otherwise result in any business conducted significant interference with the timely discharge by the employees of the Company or its Subsidiaries of their duties. Nothing in this Agreement shall require the Company or any Company Subsidiary, of its Subsidiaries to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and give access to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such or disclose any information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as to Parent or any of its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford if such access or furnish such information to the extent that the Company is advised by counsel that doing so would: disclosure would (i) result in violate any Contract entered into prior to the loss date of attorney-client privilege this Agreement, applicable Law or Order (provided that the Company shall use its commercially reasonable efforts to allow for cause such access or disclosure information be provided in a manner that does would not result in a loss of such violation), (ii) jeopardize any attorney-client privilege); , work product doctrine or other applicable privilege, or (iiiii) violate any confidentiality obligations give a Third Party the right to terminate or accelerate the rights under a Contract entered into prior to the date of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party this Agreement (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of cause such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) information be provided in a manner that would not result in a competitor of the Company such jeopardy for right to terminate or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Lawaccelerate). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (O2micro International LTD)
Access to Information. From During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimePre-Closing Period, the Company shall, shall (and shall cause each Company Subsidiary of its Subsidiaries to) afford to (a) provide to Parent the Buyer’s officers, employees, accountants, counsel, potential funding sources, placement agents, financing representatives and Merger Sub and their respective Representatives other Representatives, reasonable access access, upon reasonable notice, during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not unreasonably disrupt or interfere with business operations, to all of its properties, books, contracts, commitments, personnel and records as the Buyer shall reasonably request, and, during such period, the Company shall (and shall cause each of its Subsidiaries to) (a) furnish promptly to the Buyer, its accountants, counsel, potential funding sources, placement agents and other Representatives all other information concerning its business, finances, operations, properties, assets and personnel as the Buyer may reasonably request and (b) will instruct the Company’s employees and Representatives to cooperate in accordance with the foregoing with the Buyer in its investigation of the business of the Company and its Subsidiaries. Notwithstanding the foregoing, the Company may restrict the foregoing access to the extent that (i) in the reasonable judgment of the Company, any law, treaty, rule or regulation of any Governmental Entity applicable to the Company requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable judgment of the Company, disclosure of any such information or document would result in the loss of the Company’s attorney-client privilege or (iii) in the reasonable judgment of the Company, such disclosure would result in a loss material breach of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective a Contract to which the Company or any Company Subsidiary of its Subsidiaries is a party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from on the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentAgreement. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries The Buyer and its officers, employees, accountants, counsel, potential funding sources, placement agents, financing representatives and their respective representatives to, other Representatives shall hold all any such information provided or furnished pursuant to this Section 5.06 confidential that is nonpublic in confidence in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. From Subject to the last sentence of this Section 6.05, from the date of this Agreement hereof until the earlier Effective Time and subject to occur of the valid termination of this Agreement in accordance with Article VII Applicable Law and the Effective TimeConfidentiality Agreement, upon reasonable written prior notice and subject to restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Company shallshall (i) give to Parent, its counsel, financial advisors, auditors and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective other authorized Representatives reasonable access during normal business hours to the offices, properties, books and records and personnel of the Company and its Subsidiaries for purposes that are reasonably necessary for the consummation of the Merger or for planning with respect to post-closing integration, operations or value creation, and (ii) promptly provide Parent, its counsel, financial advisors, auditors and other authorized Representatives with all reasonably requested information regarding the business of the Company and such additional information, including the financial and operating data set forth on Section 6.05 of the Company Disclosure Schedule, regarding the Company for purposes that are reasonably necessary for the consummation of the Merger or for planning with respect to post-closing integration, operations or value creation. Any investigation pursuant to this Section 6.05 shall be conducted in such a manner as not to interfere unreasonably interfere with the operation conduct of any the business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company its Subsidiaries and or create a risk of damage or destruction to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent any property or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations assets of the Company or its Subsidiaries. No information or knowledge obtained in any Company Subsidiary investigation pursuant to this Section 6.05 shall affect or be deemed to modify any third representation or warranty made by any party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)hereunder. Notwithstanding anything herein to the contrary, from under no circumstances shall the date Company, its Subsidiaries or their respective Representatives be required to furnish any person with, or be required to provide access to any person to, information to the extent that (a) any Applicable Law requires the Company to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a risk of this Agreement until waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the earlier Company or any of its Subsidiaries is a party or is otherwise bound would violate, or cause a default payment to, or give a third Person the right to occur terminate or accelerate rights pursuant to, such Contract; (d) such access would result in the disclosure of any Trade Secrets of any Third Party (including source code); or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided, however, that in such instances, the Company shall inform Parent of the valid termination general nature of the information being withheld and, upon Parent’s request, reasonably cooperate with Parent 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 (a) through (e). Nothing in this Agreement Section 6.05 shall be construed to require the Company, any of its Subsidiaries or any of their respective Representatives to prepare any reports, analysis, appraisals, options or other information in accordance with Article VII addition to the reports, analysis, appraisals, options or other information already being prepared by the Company, any of its Subsidiaries or any of their respective Representatives. Any access to the properties of the Company and its Subsidiaries will be subject to the Effective TimeCompany’s reasonable security measures and insurance requirements and will not include the right to perform invasive or subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary, NICE, Parent and Merger Sub Subsidiary shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customeremployee, partner, vendor, supplier independent contractor or employee other service provider of the Company or any of its Subsidiaries not involved in the negotiation of the transactions contemplated by this Agreement or any customer, technology or other partner, vendor or supplier of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions Merger or any of the other transactions contemplated by this Agreement, in each case, without the Company’s prior written consentconsent (not to be unreasonably withheld, conditioned or delayed), and NICE, Parent and Merger Subsidiary acknowledge and agree that any such contact may, at the Company’s option, be arranged and supervised by Representatives of the Company. All requests for information made access pursuant to this Section 5.06 shall 6.05 must be directed to the person General Counsel of the Company, the Company’s outside counsel retained in connection with this Agreement or persons other Person designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (LiveVox Holdings, Inc.)
Access to Information. From During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimePre-Closing Period, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub and their respective Representatives representatives reasonable access (at Parent’s sole cost and expense), upon reasonable notice, during normal business hours and in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the books, records, officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, Company; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers assets and other aspects liabilities of the Company and the Company Subsidiaries as Parent or its Representatives representatives may reasonably requestrequest to the extent related to any reasonable business purpose related to the consummation of the Transactions or post-Closing integration matters; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes reasonably and in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); , (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party person or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); party, (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including the HSR Act or any other Antitrust Law or any Investment Screening Law)) or any COVID-19 Measures or (iv) jeopardize the health and safety of any employee of the Company or the Company Subsidiaries, in light of COVID-19 or any COVID-19 Measures, it being understood that, in the case of clauses (i) through (iv) above, the Company shall give notice to Parent of the fact that it is withholding such information or documents, and use reasonable best efforts to make appropriate substitute disclosure arrangements to permit the disclosure of such information without implicating the foregoing restrictions. Notwithstanding anything herein in this Agreement to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and Subsidiary in connection with the Transactions without the Company’s prior written consent, and Parent and Merger Sub acknowledge and agree that such contact shall be arranged and supervised by Company Representatives. All requests for Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives (and any other person subject to or bound by the terms of the Confidentiality Agreement) to, hold all information made provided or furnished pursuant to this Section 5.06 shall be directed to 5.05 confidential in accordance with the person or persons designated by terms of the CompanyConfidentiality Agreement. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties business or property sites to, comply with all applicable Laws and all of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures, and to use reasonable best efforts to minimize any interference with the Company’s and the Company Subsidiaries’ business operations in connection with any such access. Notwithstanding anything to the contrary contained in this Section 5.065.05, from during the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimePre-Closing Period, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned)Company, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Avid Technology, Inc.)
Access to Information. From The Company shall, and shall cause the date of this Agreement until Company Subsidiary to, afford to Purchaser’s officers, employees, accountants, counsel, financial advisors and other representatives, reasonable access during normal business hours during the earlier period prior to occur of the valid termination of this Agreement in accordance with Article VII Closing Date to all their respective books, contracts, commitments, personnel (including officers, employees and the Effective Timeagents), and records, plants, offices and other owned and leased facilities and properties and permit Purchaser to make such reasonable inspections thereof as Purchaser may reasonably request and, during such period, the Company shall, and shall cause each the Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryto, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such to Purchaser all available information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives Purchaser may reasonably request; provided, however, that the Company shall not be required to (or to may withhold, and may cause any the Company Subsidiary toto withhold, (a) afford such access any document or furnish such information that is subject to the extent that the Company is advised by counsel that doing so would: (i) result in the loss terms of a confidentiality agreement with a third party or attorney-client privilege or (provided b) such portions of documents or information relating to pricing or other matters that are highly sensitive if the exchange of such documents (or portions thereof) or information, as determined by the Company’s counsel, might reasonably result in antitrust difficulties for the Company or its affiliates. If any material is withheld by the Company pursuant to the proviso to the preceding sentence, the Company shall, and Seller shall use its commercially reasonable efforts cause the Company to, inform Purchaser as to the general nature of what is being withheld, and the Company shall, and Seller shall cause the Company to, cooperate in seeking a way to allow for disclosure of such access or disclosure in a manner that does material to the extent doing so would not result in a loss of violate any such third-party confidentiality agreement, attorney-client privilege); (ii) violate any confidentiality obligations of privilege or applicable Law. All information provided by the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 6.01 shall be directed subject to the person or persons designated by confidentiality agreement, dated February 27, 2013, between NMGC and Purchaser, as amended (the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the “Confidentiality Agreement”).
Appears in 1 contract
Access to Information. From (a) Upon reasonable notice and subject to applicable laws relating to the date exchange of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeinformation, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryits Subsidiaries to, afford to the officers, employees, agentsaccountants, properties, offices counsel and other facilities representatives of Buyer, access, during normal business hours during the Company and the Company Subsidiaries and period prior to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent to all its properties, books, contracts, commitments, records, officers, employees, accountants, counsel and Merger Sub shall notother representatives and, and shall cause their respective Representatives acting on their behalf not toduring such period, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties its Subsidiaries to, comply with make available to Buyer (i) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of Federal securities laws or Federal or state banking laws (other than reports or documents which the Company is not permitted to disclose under applicable law) and (ii) all applicable Laws other information concerning its business, properties and personnel as Buyer may reasonably request. Neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything 's customers, jeopardize any attorney-client privilege or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the contrary contained in this Section 5.06, from the date of this Agreement until Agreement. Buyer will hold, and will cause its officers, directors, employees, accountants, counsel and other representatives to hold, all such information in confidence to the earlier to occur extent required by, and in accordance with, the provisions of the valid termination of this Agreement in accordance with Article VII confidentiality agreement, dated July 29, 1998, by and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by among the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of airBuyer, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company Bank and Buyer Bank (the "Confidentiality Agreement"). (b) Upon reasonable notice and subject to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect applicable laws relating to the Merger or the Transactions or any similar transaction or transactions (including the sale exchange of one or more divisions) with any other personinformation, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent Buyer shall, and shall cause each its Subsidiaries to, afford to the officers, employees, accountants, counsel and other representatives of the Company, access, during normal business hours during the period prior to the Effective Time, to such information regarding Buyer and its Subsidiaries as shall be reasonably necessary for the Company to fulfill its obligations pursuant to this Agreement to assist in the preparation of the Proxy Statement or which may be reasonably necessary for the Company to confirm that the representations and warranties of Buyer contained herein are true and correct and that the covenants of Buyer contained herein have been performed in all material respects. Neither Buyer nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of Buyer's customers, jeopardize any attorney-client privilege or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply. (c) All information furnished by Buyer to the Company or its representatives pursuant hereto shall be held in confidence to the extent required by, and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms provisions of the Confidentiality Agreement. (d) No investigation by either of the parties or their respective representatives shall affect the representations, warranties, covenants or agreements of the other set forth herein. 7.3.
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier Subject to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeapplicable Law, the Company shall, and shall cause each Company Subsidiary to (a) provide to and the officers, directors, employees, agents and representatives of the Company and each Company Subsidiary to, afford the officers, employees, agents and representatives of Parent and Merger Sub Sub, at their sole cost and their respective Representatives risk, reasonable access during normal business hours from the date hereof through the Effective Date to its officers, employees, agents, representatives, properties, facilities, books, records, contracts and other assets and shall furnish Parent and Merger Sub all financial, operating and other data and information as Parent and Merger Sub through their officers, employees, agents or representatives, may reasonably request. Notwithstanding anything to the contrary set forth in such a manner as not to unreasonably interfere with this Agreement, during the operation period from the date of any business conducted by this Agreement until the Effective Time, the Company, the Company or any Company SubsidiarySubsidiaries and their respective officers, directors, employees, agents and representatives shall not be required to afford to the officers, employees, agents, properties, offices agents and other facilities representatives of the Company Parent and the Company Subsidiaries and to the books and records Merger Sub any access (including Tax Returns and supporting documentationa) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that if doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) would violate any confidentiality obligations of the Company applicable Law or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is a party (provided that the Company and the Company Subsidiaries shall use its commercially their reasonable best efforts to obtain allow for such access in a manner that would not violate such Law or Contract), (b) if doing so could result in a loss of the required consent ability to successfully assert attorney-client and work product privileges as reasonably determined by the Company upon the advice of outside counsel (provided that the Company and the Company Subsidiaries shall use their reasonable best efforts to allow for such access in a manner that would not result in a loss of such third party to such access or disclosure and implement appropriate procedures to enable privilege), (c) that in the reasonable judgment of the Company (after consultation with its outside counsel) would result in the disclosure of any trade secrets (provided that the Company and the Company Subsidiaries shall use their reasonable best efforts to allow for such information); (iii) access in a manner that would not result in a competitor the disclosure of trade secrets) or (d) if the Company or any Company Subsidiary receiving of its affiliates, on the one hand, and Parent or any of its affiliates, on the other hand, are adverse parties in a litigation and such information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)reasonably pertinent thereto. Notwithstanding anything herein Subject to the contraryrequirements of applicable Law, from and except for such steps as are necessary to disseminate the date of this Agreement until Offer Documents and any other documents necessary to consummate the earlier to occur of Offer, the valid termination of this Agreement in accordance with Article VII Merger and the Effective TimeTransactions, Parent and Merger Sub and their representatives shall nothold in confidence any confidential or non-public information about the Company, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company Subsidiaries or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without that they receive from and after the Company’s prior written consent. All requests for information made date hereof pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement6.5.
Appears in 1 contract
Access to Information. From (a) Between the date of this Agreement until hereof and the earlier to occur of the valid Effective Time and the termination of this Agreement in accordance with Article VII Section 9.1, upon reasonable prior notice and the Effective Timeduring normal business hours, the Company shall, and shall cause each Company Subsidiary of its Subsidiaries to, afford to the Representatives of Parent (aand Representatives of Lenders) provide reasonable access to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours properties, books, Contracts and records, and to the Company’s and its Subsidiaries’ Representatives, in such each case in a manner as not unreasonably disruptive to unreasonably interfere with the operation of any the business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and its Subsidiaries, and, during such period, the Company shall, and shall cause its Subsidiaries to, make available to Parent (i) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the books requirements of federal securities laws or federal or state lending laws and records (including Tax Returns ii) all other material information concerning its business, properties and supporting documentation) personnel as Parent may reasonably request. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would, in the reasonable judgment of the Company and after consultation with outside counsel, (A) violate any of its obligations to third parties with respect to confidentiality agreements, (B) jeopardize the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; attorney work product immunity or (ivC) breachcontravene any Law, contravene or Order, fiduciary duty, including activities that violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein Laws with respect to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside or Contract (it being agreed that the Company shall give notice to Parent of the ordinary course of business fact that it is withholding such information or documents pursuant to clauses (A) through (C) above and thereafter the Company and Parent shall use their respective reasonable best efforts to cause such information to be provided in connection with a manner that would not reasonably be expected to waive the Transactions without applicable privilege or protection or violate the Company’s prior written consentapplicable restriction). All requests for information made pursuant to this Section 5.06 7.2 shall be directed to the person executive officer or persons other Person designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Par Pharmaceutical Companies, Inc.)
Access to Information. From the date of this Agreement until to the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeClosing, the Company Sellers shall, and shall cause each Company Subsidiary to : (a) provide to Parent Buyer and Merger Sub and their respective its Representatives reasonable access during normal business hours in such a manner as not to interfere unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryGroup, upon reasonable prior written notice to the Company, to the officers, management level employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries Group and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, thereof; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers assets and other aspects liabilities of the Company and Company Subsidiaries Group as Parent Buyer or its Representatives may reasonably request; provided, however, that the Company Sellers shall not be required to (or to cause the Company or any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel Sellers believes in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company Sellers or any member of the Company Subsidiary Group with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company Sellers or any Company Subsidiary is party (provided that member of the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information)Group is party; (iii) result in a competitor of the Sellers or the Company Group (excluding the Buyer or any Company Subsidiary its Affiliates) receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law) (provided that the Company shall use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in clauses (i) through (iv). Notwithstanding anything herein ); and provided further that, for clarity, the Buyer shall not be entitled to the contrary, from the date of this Agreement until the earlier access to occur or to otherwise contact employees of the valid termination Company Group other than management level employees absent the Sellers’ prior approval, and in respect of this Agreement in accordance with Article VII and any access to management level employees, only where the Effective TimeSellers and/or their Representatives (including, Parent and Merger Sub shall notif so designated, other officers of the Company Group) are otherwise present. Buyer shall, and shall cause each of its Subsidiaries and its and their respective Representatives acting on their behalf not toRepresentatives, contact any customer, partner, vendor, supplier to hold all information provided or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made furnished pursuant to this Section 5.06 shall be directed to 6.02 confidential in accordance with the person or persons designated by terms of the CompanyConfidentiality Agreement. During any visit to the business or property sites of the Company or any of the Company SubsidiariesGroup, each of Parent and Merger Sub Buyer shall, and shall cause their respective representatives its Representatives accessing such properties to, comply with all applicable Laws and all of the Sellers’, the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06Agreement, from the date of this Agreement until to the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeClosing, none of Parent, Merger Sub Buyer or any of their respective affiliates shall conductits Affiliates or Representatives shall, without the prior written consent of the Company (Sellers, which consent shall not may be unreasonably withheldwithheld in the Sellers’ sole discretion, delayed or conditioned), conduct any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include Real Property involving any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with the Real Property. No investigation under this Section 6.02 or otherwise shall affect any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection ofrepresentations, warranties, covenants or to disclose any information regarding, the deliberations agreements of the Company Board Sellers or any committee thereof with respect condition to the Merger or obligations of the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into parties hereto under this Agreement. For a period of seven years following the Closing Date (or longer if required by applicable Law), or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent Buyer shall, and shall cause each the Company Group to preserve and keep the records held by them relating to the respective businesses of its Subsidiaries the Company Group and its shall make such records (or copies) and reasonably appropriate personnel available, at reasonable times and upon reasonable advance notice, to the Sellers, their Affiliates and their respective representatives toRepresentatives as may be reasonably requested by such person in connection with any audit, hold all information provided accounting, tax, litigation, investigation or furnished pursuant other similar need related to this Section 5.06 confidential or in accordance connection with the terms Sellers’ prior ownership of the Confidentiality AgreementCompany Group.
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to (a) provide Prior to the Closing Date and subject to applicable Laws and Section 6.06, Parent shall be entitled, through its officers, employees and Merger Sub Representatives (including its legal advisors, accountants and their respective Representatives financing sources), to have such access to the information, properties, businesses and operations of the Company and its Subsidiaries and such examination of the books and records of the Company and its Subsidiaries as it reasonably requests upon reasonable advance written notice. Any such access and examination shall be conducted during normal regular business hours in such a manner as and under circumstances that do not to unreasonably interfere with the operation normal operations of any business conducted by the business, and shall be subject to restrictions under applicable Law. The Company or any Company Subsidiary, to shall cause the officers, employees, consultants, agents, propertiesaccountants, offices attorneys and other facilities Representatives of the Company and the Company its Subsidiaries to cooperate with Parent and to the books Parent’s Representatives in connection with such access and records (including Tax Returns examination, and supporting documentation) of Parent and its Representatives shall cooperate with the Company and the Company Subsidiaries, its Representatives and (b) furnish promptly such information concerning shall use their commercially reasonable efforts to minimize any disruption to the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as . Any disclosure during such investigation by Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (constitute any enlargement or to cause any Company Subsidiary to) afford such access additional representation or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations warranty of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result beyond those specifically set forth in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law)Article IV. Notwithstanding anything herein to the contrary, from no such access or examination shall be permitted to the date extent that it (i) relates to the negotiation of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeTransactions, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee (ii) would unreasonably disrupt the operations of the Company or any of the Company its Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of (iii) would require the Company or any of its Subsidiaries to disclose information that in the reasonable judgment and good faith of counsel to the Company, is subject to attorney-client privilege or may conflict with any applicable Law or confidentiality obligations to which the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conductits Subsidiaries is bound; provided, without the prior written consent of however, that in each such case, the Company and its Subsidiaries shall use commercially reasonable efforts to take those actions reasonably necessary so that the Company or its Subsidiaries is able to provide such information to Parent or a Representative of Parent (which consent efforts shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit waive its attorney-client privilege or violate any inspection of, Contract or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementapplicable Law).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Abm Industries Inc /De/)
Access to Information. From Subject to applicable Law, including Antitrust Law, during the period from the date of this Agreement until the earlier to occur of the valid Effective Time and the termination of this Agreement in accordance with Article VII Agreement, Parent will be entitled, through its employees and representatives, to have such access to the Effective Timeassets, properties, business, operations, personnel and representatives of the Company shall, and shall cause each Company Subsidiary as is reasonably necessary in connection with Parent’s investigation of the Company with respect to (a) provide to Parent the transactions contemplated hereby. Any such investigation and Merger Sub and their respective Representatives reasonable access examination will be conducted during normal business hours upon reasonable advance notice, at Parent’s expense and under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and shall be subject to the Company’s reasonable security measures and insurance requirements, except as may otherwise be required or restricted by Law, so as to limit disruption to or impairment of the Company’s business, and the Company will cooperate fully therein. No investigation by Parent will diminish or obviate any of the representations, warranties, covenants or agreements of the Company contained in no event this Agreement. The Company will furnish the representatives of Parent during such period with all such information and copies of such documents concerning the affairs of the Company as such representatives may any environmental investigation include any sampling or other intrusive investigation reasonably request and cause its Representatives to cooperate fully with such representatives of air, surface water, groundwater, soil or anything else at or Parent in connection with any of such real propertyinvestigation. Nothing in this Section 5.06 herein shall require the Company to disclose any information to Parent if such disclosure would, in its reasonable discretion and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Company has reasonably cooperated with Parent to permit any such inspection of, of or to disclose such information on a basis that does not waive such privilege with respect thereto) or (ii) contravene any information regarding, the deliberations of applicable Law (so long as the Company Board or any committee thereof has used reasonable best efforts to provide such information in a way that does not contravene applicable Law); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company determines doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws. With respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished disclosed pursuant to this Section 5.06 confidential in accordance with the terms 6.2, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Arena Pharmaceuticals Inc)
Access to Information. From During the period commencing on the date hereof and ending on the earlier of (i) the date on which the Effective Time occurs and (ii) the date on which this Agreement until the earlier is terminated pursuant to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeSection 7.1, upon reasonable notice, the Company shall, and shall cause each of the Company Subsidiary to (a) provide to Subsidiaries to, afford Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, directors, employees, agentsaccountants, properties, offices books and other facilities records of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of and, during such period, the Company shall furnish promptly to Parent and Merger Sub all information concerning its or the Company Subsidiaries, and (b) furnish promptly such information concerning the ' business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives and Merger Sub may reasonably request; provided, however, that (A) such access shall not unreasonably disrupt the Company's or any of the Company Subsidiaries' operations and (B) such books, records and information shall be made available in their existing forms, and this covenant shall not impose upon the Company or any Company Subsidiary any obligation to prepare, assemble or otherwise create any additional reports, statements or other informational materials. Notwithstanding anything to the contrary contained in this Agreement, the Company and/or the Company Subsidiaries shall not be required to (A) provide any information or to cause access that would violate any Company Subsidiary to) afford such access applicable Law or furnish such information to the extent Order, including Antitrust Laws; provided, that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that and/or the Company Subsidiaries have disclosed the applicable Law or Order that would be violated and the reasons therefor, as well as the type of information or documents being withheld, or (B) conduct, or permit Parent, Merger Sub or any of their Representatives to conduct, any Phase II investigation or other environmental soil or groundwater investigation relating to any real property owned by or leased to the Company and/or the Company Subsidiaries. Parent and Merger Sub shall use its commercially reasonable efforts to allow for such access not (and shall not permit any of their respective Representatives, including financing sources, to) contact any Franchisee (or disclosure in a manner that does not result in a loss of attorney-client privilegeformer Franchisee); (ii) violate any confidentiality obligations , supplier, distributor, customer, agent or Representative of the Company or any Company Subsidiary to or any third party or otherwise breachof the foregoing regarding the Company, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that or the Company shall use its commercially reasonable efforts transactions contemplated hereby, prior to obtain the required Closing without the prior written consent of such third party to such access the Company, which will not be unreasonably withheld or disclosure and implement appropriate procedures to enable delayed; provided, however, that notwithstanding the disclosure of such information); (iii) result in a competitor of the Company foregoing or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything else herein to the contrary, from Parent and the date of Company acknowledge that entering into this Agreement until and consummating the earlier to occur of the valid termination of this Agreement in accordance transactions contemplated hereby shall not preclude, limit or restrict Parent or its Affiliates from (i) competing directly or indirectly with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, (ii) acquiring interests in each case outside of the ordinary course of companies with technology or business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant models similar to this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, Subsidiaries or (iii) contacting suppliers or distributors of the Company or any Company Subsidiary in ordinary course of their current business operations; in each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and case without referencing the Company’s , any Company Subsidiary or any of the transactions contemplated hereby. Nothing contained in this Agreement shall be deemed to give Parent or Merger Sub, directly or indirectly, rights to control or direct the Company's or the Company Subsidiaries' operations prior to the Effective Time. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision of its and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement' operations.
Appears in 1 contract
Access to Information. From Subject to Section 4.4, during the period from the date of this Agreement until to the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeClosing Date, if reasonably requested by Parent, the Company shall, and shall cause each other Merged Company Subsidiary to (a) provide to to, afford the officers, directors, employees and other agents of Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, propertiesrecords, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects employees of the Merged Companies. Any such access shall be managed by and conducted through those representatives identified by the Company, and shall be subject to such additional limitations as the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; providedrequire to prevent disclosure of the transactions contemplated hereby, howeverthe disruption of the business of the Merged Companies and/or the disclosure of any confidential or legally privileged information. Without the prior written consent of the Company, that Parent shall not contact any referral source, patient, customer, dealer, distributor, vendor, supplier, insurer or service provider of any Merged Company concerning such Merged Company or the transactions contemplated hereby. Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be required to disclose to Parent or any agent or representative thereof any (a) information relating to the pending sale process being conducted by the Merged Company, except as expressly required by Section 4.12 with respect to offers or to cause proposals received after the date of this Agreement, or (b) information if doing so would violate any Company Subsidiary to) afford such access Contract, Law or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access Legal Requirement or disclosure in a manner that does not which would result in a loss of the ability to successfully assert a claim of privilege (including without limitation, the attorney-client privilegeand work product privileges); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided it being understood that the Company shall use its commercially make reasonable efforts efforts, through redaction or otherwise, to obtain maximize the required consent delivery of such third party information hereunder. Subject to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving Section 4.18, no information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, obtained by Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 4.5 or otherwise shall be directed deemed to amend or supplement the person Disclosure Schedule, to prevent or persons designated by the Company. During cure any visit to the business breach of warranty, or property sites breach of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection ofcovenant, or to disclose otherwise limit or affect any information regarding, the deliberations rights of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality AgreementBuyer Indemnitees under Article VII.
Appears in 1 contract
Access to Information. From (a) Upon reasonable notice and subject to applicable laws relating to the date exchange of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timeinformation, the Company shall, and shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company SubsidiaryBank to, afford to the directors, officers, employees, agents, investment bankers, accountants, consultants, advisers, counsel and other representatives (collectively, “Representatives”) of Parent and Parent Bank, reasonable access, during normal business hours during the period prior to the Effective Time, to all its properties, offices books, contracts, commitments, records, officers, employees, accountants, counsel and other facilities of Representatives and, during such period, it shall, and shall cause the Company and the Company Subsidiaries Bank to, make available to Parent and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such Parent Bank all information concerning the its business, properties, offices properties and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries personnel as Parent or its Representatives Parent Bank may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from nothing herein shall require the Company or the Company Bank to provide access to or to disclose information where such access or disclosure would, in the reasonable judgment of the Company, (A) breach any agreement with any third party in effect on the date of this Agreement until the earlier to occur Agreement, (B) constitute a waiver of the valid termination attorney-client or other privilege held by such party or (C) violate any applicable Law. If any of this Agreement the restrictions in accordance clauses (A) through (C) of the foregoing sentence shall apply, the parties will use their reasonable best efforts to make appropriate alternative disclosure arrangements, including adopting additional specific procedures to protect the confidentiality of sensitive material and to ensure compliance with Article VII applicable Laws. As soon as reasonably practicable after they become available, but in no event more than 30 days after the end of each calendar month ending after the date hereof, the Company will furnish to Parent (a) consolidated financial statements (including balance sheets and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee statements of operations) of the Company or any of and the Company SubsidiariesBank as of and for such month then ended, in each case outside of the ordinary course of business (b) internal management financial control reports showing actual financial performance against plan and in connection with the Transactions without the Company’s prior written consent. All requests previous period and (c) except for information made pursuant any materials subject to this Section 5.06 shall attorney-client privilege or otherwise required by Law to be directed to the person or persons designated kept confidential by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned)Bank, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials reports provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each or the board of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms directors of the Confidentiality AgreementCompany Bank or any committee thereof relating to the financial performance and risk management of the Company or the Company Bank. In addition, the Company will furnish Parent with a copy of each report filed by it or the Company Bank with a Governmental Entity (other than portions thereof relating to confidential supervisory or examination materials) within three business days following the filing thereof.
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, the Company shall, and shall cause each Company Subsidiary to to: (a) provide to Parent and Merger Sub and their respective Representatives representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, upon prior written notice to the Company, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, thereof; and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers assets and other aspects liabilities of the Company and Company Subsidiaries as Parent or its Representatives representatives may reasonably request; provided, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party person or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information)party; (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including the HSR Act or any other Antitrust Law). Notwithstanding anything herein ; provided, further, that if the Company does not disclose information in reliance on the foregoing clauses (i) through (iv), it shall provide notice to Parent that it is withholding such information and shall use its commercially reasonable efforts to communicate, to the contraryextent feasible, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement applicable information in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf a way that would not to, contact any customer, partner, vendor, supplier or employee of the Company or any of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to this Section 5.06 shall be directed give rise to the person or persons designated by the Companybasis for such nondisclosure. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and all of the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.065.05, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned)Company, any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives torepresentatives, to hold all information provided or furnished pursuant to this Section 5.06 5.05 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cellular Dynamics International, Inc.)
Access to Information. From (a) During the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeInterim Period, the Company shall, and shall cause each Company Subsidiary to to, (ai) provide to give Parent and Merger Sub and their respective its authorized Representatives reasonable access during normal business hours hours, and upon reasonable advance notice, to all properties, facilities, personnel and books and records of the Company and each Company Subsidiary in such a manner as not to interfere unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, Subsidiary and (ii) permit such inspections as Parent may reasonably require and promptly furnish Parent with such financial and operating data and other information with respect to the officersbusiness, employees, agents, properties, offices properties and other facilities personnel of the Company and the each Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries Subsidiary as Parent or its Representatives may reasonably request; providedprovided that all such access shall be coordinated through the Company or its designated Representatives, however, in accordance with such reasonable procedures as they may establish; and provided further that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel believes in good faith that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information)party; (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Lawprovided that the Company shall use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in the events set out in clauses (i) through (iv)). Notwithstanding anything herein to No investigation under this Section 5.2(a) or otherwise shall affect the contraryrepresentations, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Timewarranties, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier covenants or employee agreements of the Company or any the Partnership or the conditions to the obligations of the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant to parties under this Section 5.06 shall be directed to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, Agreement and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and not limit or otherwise affect the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub rights or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreementremedies available hereunder.
Appears in 1 contract
Access to Information. From (a) During the period from the date of this Agreement and continuing until the earlier Closing Date, at reasonable times without causing unreasonable disruption to occur the Target Companies’ respective Businesses, consistent with applicable Law (including any applicable Public Safety Measures), so long as such access does not jeopardize the health and safety of any employee of the valid termination of this Agreement in accordance with Article VII and the Effective TimeTarget Companies, the Company Primary Companies shall, and shall cause each Company Subsidiary the other Target Companies to, give the Purchaser and its authorized representatives full access to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, all offices and other facilities, Contractsand to all books and records, assetsof the Target Companies, liabilitiesand will, employeesand will cause the other Target Companies to, permit the Purchaser to make, and will reasonably cooperate, and will cause the other Target Companies to reasonably cooperate, with regard to, such inspections, and will cause the Target Companies’ officers to furnish to the Purchaser such financial and operating data and other aspects of similar information as the Company and Company Subsidiaries as Parent or its Representatives Purchaser may from time to time reasonably request; provided. Notwithstanding the foregoing, however, that the Company shall not be required to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: Target Companies may withhold (i) result in any document or information that is subject to the loss terms of a confidentiality agreement with a third Person, (ii) information that, if disclosed, would violate an attorney-client or other privilege or would constitute a waiver of rights as to attorney work product or attorney-client privilege (provided that held by the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company Seller or any Company Subsidiary to any third party Seller Affiliate (including the Target Companies), or otherwise breach(iii) information, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (provided that the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of which would violate applicable Law, such as portions of documents or information relating to pricing or other matters that are highly sensitive, if the exchange of such documents (or portions thereof) or information); (iii) result in a competitor of , as determined by the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breachSeller’s legal counsel, contravene or might reasonably violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from in no event shall the date of this Agreement until Seller, the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective TimeTarget Companies, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company or any Affiliate of Seller be required to (x) allow the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consent. All requests for information made pursuant Purchaser to this Section 5.06 shall be directed speak to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall employees, other than the Persons set forth on Schedule 6.2 of the Disclosure Schedules, or (y) conduct, without or permit any other Person to conduct, any invasive environmental testing or assessments with respect to the Owned Real Estate or the Leased Real Property, absent the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the applicable Target Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) From and after the date of this Agreement hereof until the earlier to occur of the valid Closing Date or the termination of this Agreement in accordance with Article VII its terms, upon reasonable notice, and subject to restrictions under applicable Law and the Effective Time, restrictions contained in the confidentiality agreements to which the Company shallis subject, and Seller shall cause each the Company Subsidiary to (a) provide to Parent Buyer and Merger Sub and their respective its authorized Representatives reasonable access during normal business hours reasonable access to the management, properties, assets, Contracts, books and records of the Business (in such a manner so as to not to unreasonably interfere with the operation normal business operations of any business conducted by the Company or any Company Subsidiary, Company). All such information shall be treated as confidential information pursuant to the officers, employees, agents, properties, offices and other facilities terms of the Company and Confidentiality Agreement, the Company Subsidiaries and provisions of which are by this reference hereby incorporated herein. Notwithstanding anything to the books and records (including Tax Returns and supporting documentation) of contrary set forth in this Agreement, during the Company and period from the Company Subsidiariesdate hereof until the Closing, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that the Company shall not be required to (disclose to Buyer or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: of its Representatives (i) result in the loss of attorney-client privilege any information (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (iiA) if doing so would violate any confidentiality obligations of the Company contract or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract Law to which the Company or any Company Subsidiary of their respective Affiliates is a party (provided that or is subject or which it reasonably determined upon the Company shall use its commercially reasonable efforts to obtain the required consent advice of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) counsel could result in a competitor the loss of the Company or any Company Subsidiary receiving information that is competitively sensitive; or ability to successfully assert attorney-client and work product privileges, (ivB) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of if the Company or any of its Affiliates, on the Company Subsidiariesone hand, and any of Buyer or any of its Affiliates, on the other hand, are adverse parties in each case outside of the ordinary course of business a litigation and in connection with the Transactions without the Company’s prior written consent. All requests for such information made pursuant to this Section 5.06 shall be directed to the person is reasonably pertinent thereto, or persons designated by the Company. During any visit to the business or property sites of (C) if the Company or any of its Affiliates reasonably determines that such information should not be so disclosed due to its commercially sensitive nature, (ii) any information relating to Taxes or Tax Returns other than information relating solely to the Business, (iii) any information contained in, or relating to or addressing matters contained in, any personnel file, human resources file or other employment-related file or information or (iv) any information in relation to the sale of the Company, except as may be otherwise required pursuant to this Agreement, or any other sale process involving the Company. Nothing in this Section 6.4 shall be construed to permit Buyer or any of its advisors to have access to any files, records, agreements, communications or documents of Seller to the extent related to Seller or any of its Affiliates (other than the Company), including (i) any bids or offers received by Seller or any of its Affiliates for the sale of any of the Shares, it being agreed that all such bids or offers shall be the sole property of Seller and (ii) any affiliated, consolidated, combined, unitary, aggregate or similar group income Tax Returns on which any Person other than the Company Subsidiariesis included. (b) The information provided pursuant to Section 6.4(a) shall be requested and used solely in connection with preparing for Closing and the obligations set forth in Section 6.5, each it being understood that Seller, in fulfillment of Parent this obligation, shall not be required to provide Buyer with any confidential information or business secrets and Merger Sub that such information shall be provided to Buyer’s external counsel on a counsel-to-counsel basis only. Buyer shall, and shall cause their respective representatives accessing such properties its advisors to, comply abide by the terms of the Confidentiality Agreement with all applicable Laws respect to such access and any information furnished to Buyer or any of its advisors. Seller makes no representation or warranty as to the accuracy of any information, if any, provided pursuant to Section 6.4(a), and Buyer may not rely on the accuracy of any such information, in each case, other than express representations, and the Company’s and providing of any such information shall not expand the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything remedies available to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier Buyer or its Affiliates under or with respect to occur of the valid termination of this Agreement in accordance with Article VII any manner. (c) From and after the Effective Time, none Closing for a period of Parent, Merger Sub or any of their respective affiliates shall conduct, seven (7) years following the Closing Date and without the prior written consent prejudice to obligations of the Company (which consent shall not be unreasonably withheldunder the Carve-Out SPAs and Carve-Out Asset Agreements, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent Buyer shall, and shall cause the Company to, to the extent necessary in connection with any Tax filing, audit or dispute of Seller or its Affiliates relating to the Company or the Business provide each of its Subsidiaries Seller Party and its advisors with reasonable access, during normal business hours, and their respective representatives toupon reasonable advance notice, hold all information provided to the books and records (whether in written or furnished pursuant to this Section 5.06 confidential in accordance with electronic form), including work papers, schedules, memoranda, Tax Returns, Tax schedules, Tax rulings, and other documents (for the terms purpose of examining and copying) of the Confidentiality Agreement.Company with respect to periods or occurrences prior to the Closing Date and
Appears in 1 contract
Access to Information. From the date of this Agreement until the earlier to occur of the valid termination of Effective Time or the date this Agreement is properly terminated in accordance with Article VII 7, and subject to the Effective Timerequirements of any Law, including any anti-trust Law, the Company shallwill, and shall will cause each Company Subsidiary to (a) provide to Parent and Merger Sub its and their affiliates, and each of their respective Representatives reasonable access during normal business hours in such a manner as not to unreasonably interfere with the operation of any business conducted by the Company or any Company Subsidiaryofficers, to the officersdirectors, employees, agents, propertiescounsel, offices accountants, investment bankers, financial advisors and other facilities of representatives (collectively, the “Company Representatives”) to, give Merger Sub and Parent and their respective officers, directors, employees, agents, counsel, accountants, investment bankers, financial advisors, representatives, consultants and financing sources (collectively, the Company Subsidiaries “Parent Representatives”) reasonable access, upon reasonable notice and during the Company’s normal business hours, to the books and records (including Tax Returns and supporting documentation) of the Company and the Company Subsidiaries, and (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, to the senior officers and other aspects Company Representatives, and to the payors, vendors, and books and records of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, that each Subsidiary and will cause the Company shall not be required Representatives and the Subsidiaries to (furnish or make available to cause any Company Subsidiary to) afford Parent, Merger Sub and the Parent Representatives such access or furnish financial and operating data and such other information with respect to the extent that the Company is advised by counsel that doing so would: (i) result in the loss of attorney-client privilege (provided that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations business and operations of the Company or any Company Subsidiary as Parent, Merger Sub or the Parent Representatives may from time to any third party or otherwise breachtime reasonably request, contravene or violate any then effective Contract to which provided that such investigation shall not unreasonably disrupt the Company’s business. Notwithstanding the foregoing, the Company may withhold (i) any document or information that is subject to the terms of a confidentiality agreement with a third party, (ii) information that, if disclosed, would violate an attorney-client or other privilege or might constitute a waiver of rights as to attorney work product or attorney-client privilege, or (iii) information, the disclosure of which is prohibited by Law, such as portions of documents or information relating to pricing or other matters that are highly sensitive if the exchange of such documents (or portions thereof) or information, as determined by the Company’s counsel, might reasonably result in antitrust compliance questions for such party (or any of its affiliates). If any material is withheld by the Company Subsidiary is party (provided that pursuant to the preceding sentence, the Company shall use its commercially reasonable efforts to obtain the required consent of such third party to such access or disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information that is competitively sensitive; or (iv) breach, contravene or violate any applicable Law (including any Antitrust Law). Notwithstanding anything herein to the contrary, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, inform Parent and Merger Sub shall not, as to the general nature of what is being withheld and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of the Company and Parent shall cooperate in good faith to design and implement alternative procedures to enable Parent to evaluate any such information without waiving an applicable privilege or causing a violation or default under any of contract or applicable Law or giving any third party a right to terminate or accelerate the Company Subsidiaries, in each case outside of the ordinary course of business and in connection with the Transactions without the Company’s prior written consentrights under any contract. All requests for information made pursuant to this Section 5.06 shall be directed to the person or persons designated Unless otherwise required by the Company. During any visit to the business or property sites of the Company or any of the Company SubsidiariesLaw, each of Parent and Merger Sub shallwill, and shall will cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives Representatives to, hold all any such information provided or furnished pursuant to this Section 5.06 confidential in confidence in accordance with the terms of the Confidentiality Agreement (as defined below). Except as otherwise agreed to by the Company, and notwithstanding termination of this Agreement, the terms and provisions of the Confidentiality Agreement, dated as of April 13, 2009 (the “Confidentiality Agreement”), between H.I.G. Capital Management, Inc. and Xxxxxxx Xxxxx & Associates, Inc., as advisor to, and on behalf of, the Company, shall apply to all information furnished to any Parent Representative by the Company, any Subsidiary or any Company Representative hereunder or thereunder.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Allion Healthcare Inc)
Access to Information. From During the date of this Agreement until the earlier Pre-Closing Period and subject to occur of the valid termination of this Agreement in accordance with Article VII Applicable Law and the Effective TimeConfidentiality Agreement, the Company shallshall (i) give to Parent, its counsel, financial advisors, auditors and other authorized representatives reasonable access, upon reasonable advance notice, to the offices, properties, assets, books and records of the Company and its Subsidiaries, (ii) to the extent not publicly available, furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons may reasonably request and (iii) instruct the employees, counsel, financial advisors, auditors and other authorized representatives of the Company and its Subsidiaries to reasonably cooperate with Parent in its investigation of the Company and its Subsidiaries. Any investigation pursuant to this Section shall cause each Company Subsidiary to (a) provide to Parent and Merger Sub and their respective Representatives reasonable access during normal business hours be conducted in such a manner as not to interfere unreasonably interfere with the operation conduct of any the business conducted by the Company or any Company Subsidiary, to the officers, employees, agents, properties, offices and other facilities of the Company and its Subsidiaries. No information or knowledge obtained in any investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by any party hereunder. Nothing in this Agreement will require the Company Subsidiaries and to permit such access or make such disclosure to the books and records extent it determines, after consultation with outside counsel, that such disclosure or access would reasonably be likely to (including Tax Returns and supporting documentation1) violate the terms of the Company and the Company Subsidiaries, and any confidentiality agreement or other Contract with a Third Party (b) furnish promptly such information concerning the business, properties, offices and other facilities, Contracts, assets, liabilities, employees, officers and other aspects of the Company and Company Subsidiaries as Parent or its Representatives may reasonably request; provided, however, provided that the Company shall not be use its reasonable best efforts to obtain the required consent of such Third Party to (or to cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company is advised by counsel that doing so would: disclosure); (i2) result in the loss of any attorney-client privilege (provided that the Company shall use its commercially reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege); or (ii3) violate any confidentiality obligations of the Company or any Company Subsidiary to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party Applicable Law (provided that the Company shall use its commercially reasonable best efforts to obtain the required consent of such third party to provide such access or make such disclosure and implement appropriate procedures to enable the disclosure of such information); (iii) result in a competitor of the Company or any Company Subsidiary receiving information manner that is competitively sensitive; or (iv) breach, contravene or does not violate any applicable Law (including any Antitrust Applicable Law). Notwithstanding anything herein Nothing in this Agreement will require the Company to provide any access or make any disclosure to Parent under this Section 6.02 to the contrary, from the date of this Agreement until the earlier extent such access or information is reasonably pertinent to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, Parent and Merger Sub shall not, and shall cause their respective Representatives acting on their behalf not to, contact any customer, partner, vendor, supplier or employee of a litigation where the Company or any of its Affiliates, on the Company Subsidiariesone hand, in each case outside and Parent or any of its Affiliates, on the ordinary course of business and in connection with the Transactions without the Company’s prior written consentother hand, are adverse parties. All requests for information made exchanged pursuant to this Section 5.06 shall be directed 6.02 is subject to the person or persons designated by the Company. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Merger Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and the Company’s and the Company Subsidiaries’ reasonable safety and security procedures. Notwithstanding anything to the contrary contained in this Section 5.06, from the date of this Agreement until the earlier to occur of the valid termination of this Agreement in accordance with Article VII and the Effective Time, none of Parent, Merger Sub or any of their respective affiliates shall conduct, without the prior written consent of the Company (which consent shall not be unreasonably withheld, delayed or conditioned), any environmental investigation at any real property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real property. Nothing in this Section 5.06 shall require the Company to permit any inspection of, or to disclose any information regarding, the deliberations of the Company Board or any committee thereof with respect to the Merger or the Transactions or any similar transaction or transactions (including the sale of one or more divisions) with any other person, the entry into this Agreement, or any materials provided to the Company Board or any committee thereof in connection therewith. Disclosure obligations regarding a Competing Proposal shall be governed by Section 5.03. Parent shall, and shall cause each of its Subsidiaries and its and their respective representatives to, hold all information provided or furnished pursuant to this Section 5.06 confidential in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hutchinson Technology Inc)
