Access to Records and Personnel. (a) Until the seventh anniversary of the Closing Date, each of Seller and Purchaser agrees to provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting party’s sole expense, any information in the possession or under the control of such party that the requesting party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party (including under applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting party, (ii) for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements or (iii) to comply with its obligations under this Agreement; provided, however, that in the event that any party determines that any such provision of information could be commercially detrimental, violate any Law or agreement, or waive any attorney-client, or other similar privilege, the parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence. (b) Until the seventh anniversary of the Closing Date, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes. (c) Any information owned by a party that is provided to a requesting party pursuant to this Section 6.5 shall be deemed to remain the property of the providing party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information. (d) Except as otherwise provided herein, each of Seller and Purchaser agrees to use its reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business and the Purchased Assets in their respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, following the Closing Date or for such longer period as may be required by Law or until the expiration of the relevant representation or warranty under any of the Transaction Documents and the resolution of any related claim of indemnification related thereto. (e) No party shall have any liability to any other party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d). (f) The rights and obligations granted under this Section 6.5 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in this Agreement. (g) Nothing in this Section 6.5 shall require either party to violate any binding and enforceable agreement entered into prior to the date of this Agreement with any third parties regarding the confidentiality of confidential and proprietary information; provided, however, that in the event that either party is required under this Section 6.5 to disclose any such information, that party shall use all commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such information.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Idearc Inc.), Asset Purchase Agreement (Infospace Inc)
Access to Records and Personnel. (a) Until From and after the seventh Closing until the third anniversary of the Closing DateClosing, each of Seller and Purchaser agrees to Party shall provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting partyParty’s sole expense, reasonable access (including using commercially reasonable efforts to give access to Third Parties possessing information), during normal business hours, to the other Party’s Representatives and to any information books, records, documents, files and correspondence in the possession or under the control of such party the other Party that the requesting party Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party Party (including under applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyParty in connection with the transactions contemplated hereby, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements arising from the transactions contemplated by this Agreement, (iii) for use in any Proceeding relating to the Infringement of the Intellectual Property Rights of another Person, or (iiiiv) to comply with its obligations under this Agreement; provided, however, that in the event that no Party shall be required to provide access to or disclose information where such access or disclosure (y) is related to any party determines that claim for indemnification pursuant to Article VIII or any other claim against a Party or such provision of information could be commercially detrimental, Party’s Affiliates or (z) would violate any Law or agreement, or waive any attorney-clientclient or other similar privilege, and each Party may redact information regarding itself or its Affiliates or otherwise not relating to the other Party and its Affiliates, and, in the event such provision of information could reasonably be expected to violate any Law or agreement or waive any attorney-client or other similar privilege, the parties Parties shall take all commercially reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party Party that is provided to a requesting party Party or its Representatives pursuant to this Section 6.5 5.5 shall be deemed to remain the property of the providing partyParty. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(d) Except as otherwise provided herein, each of Seller and Purchaser agrees to use its reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business and the Purchased Assets in their respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, following the Closing Date or for such longer period as may be required by Law or until the expiration of the relevant representation or warranty under any of the Transaction Documents and the resolution of any related claim of indemnification related thereto.
(ec) No party Party shall have any liability to any other party Party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 5.5 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d).
(fd) The rights From and obligations granted under after the Closing until the fifth anniversary thereof, unless otherwise required by Law or the rules and regulations of any stock exchange or quotation services on which such Party’s stock is traded or quoted, each Party shall hold confidentially, and shall cause its Affiliates and Representatives to hold confidentially, all information furnished or made available by a Party (the “Provider”) to the other Party (the “Receiver”) or its Representatives pursuant to this Section 6.5 are 5.5 and the terms of this Agreement and the other Transaction Documents and Seller shall hold confidential, and shall cause its Affiliates and Representatives to hold confidential all information regarding the Business (all such information being referred to as “Confidential Information”). The Parties shall, and shall cause their Representatives to, use the Confidential Information only in connection with the performance of this Agreement or as otherwise contemplated hereby. “Confidential Information” furnished or made available pursuant to this Section 5.5 shall not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiver or its Representatives in violation of this Agreement; (ii) becomes available to the Receiver or its Representatives on a nonconfidential basis from a Person other than the Provider or its Affiliates or Representatives who is not known by the Receiver to be bound by a confidentiality agreement with the Provider or any of its Affiliates or Representatives, or is not known by the Receiver to be under an obligation to the Provider or any of its Affiliates or Representatives not to transmit the information to the Receiver; (iii) was in the possession of the Receiver prior to disclosure by the Provider or its Representatives (provided that any information regarding the Business in the possession of Seller or its Affiliates prior to the Closing Date or provided to Seller or its Affiliates pursuant to, or maintained by Seller or its Affiliates under, the Transition Services Agreement shall not be subject to this provision); or (iv) is developed by the Receiver independent of any specific limitationsConfidential Information provided hereunder (provided that any information regarding the Business in the possession of Seller or its Affiliates prior to the Closing Date or provided to Seller or its Affiliates pursuant to, qualifications or additional provisions on maintained by Seller or its Affiliates under, the sharing, exchange or confidential treatment of information set forth in Transition Services Agreement shall not be subject to this Agreement.
(g) provision). Nothing in this Section 6.5 5.5 shall require either party to violate any binding and enforceable agreement entered into prior to affect Purchaser’s rights in the date of this Agreement with any third parties regarding Purchased Assets following the confidentiality of confidential and proprietary information; provided, however, that in Closing. In the event that either party the Receiver or any of its Representatives are required by Law or the rules and regulations of any stock exchange or quotation services on which such Party’s stock is required under this Section 6.5 traded or quoted to disclose any Confidential Information, the Receiver shall provide the Provider with prompt notice of such informationrequest or requirement in order to enable the Provider to: (x) seek an appropriate protective order or other remedy; (y) consult with the Receiver with respect to the Provider’s taking steps to resist or narrow the scope of such request or legal process; or (z) waive compliance, in whole or in part, with the terms of this Section 5.5(d). In the event that party such protective order or other remedy is not obtained, or the Provider waives compliance, in whole or in part, with the terms of this Section 5.5(d), the Receiver or its Representative, as the case may be, shall use all commercially reasonable efforts to seek disclose only that portion of the Confidential Information that the Receiver is advised in writing by its legal counsel is legally required to obtain such third party’s consent be disclosed and to the disclosure of such informationensure that all Confidential Information that is so disclosed will be accorded confidential treatment.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Extreme Networks Inc)
Access to Records and Personnel. (a) Until From and after the seventh Closing until the sixth anniversary of the Closing DateClosing, each of Seller and Purchaser agrees to shall provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting party’s sole expense, reasonable access (including using commercially reasonable efforts to give access to third parties possessing information), during normal business hours, to the other party’s Representatives and to any information books, records, documents, files and correspondence in the possession or under the control of such the other party that the requesting party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party Party (including under applicable Applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyparty in connection with the Transactions, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements arising from the Transactions, (iii) for use in any Proceeding relating to the infringement of the Intellectual Property Rights of another Person or (iiiiv) to comply with its obligations under this Agreement; provided, however, that in the event that no party shall be required to provide access to or disclose information where such access or disclosure (y) is related to any claim against a party determines that any or such provision of information could be commercially detrimental, party’s Affiliates or (z) would violate any Applicable Law or agreementContract, or waive any attorney-clientclient or other similar privilege, and each party may redact information regarding itself or its Affiliates or otherwise not relating to the other party and its Affiliates, and, in the event such provision of information could reasonably be expected to violate any Applicable Law or Contract or waive any attorney-client or other similar privilege, the parties shall take all commercially reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party that is provided to a requesting party pursuant to this Section 6.5 6.03 shall be deemed to remain the property of the providing party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(dc) Except as otherwise provided herein, each of Seller and Purchaser agrees to party shall use its commercially reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business (the “Books and the Purchased Assets Records”) in their such party’s respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, six years following the Closing Date or for such longer period as may be required by Law or until Date. Following the expiration of the relevant representation such period, either party may destroy or warranty under any of the Transaction Documents and the resolution otherwise dispose of any related claim of indemnification related thereto.
(e) No party shall have any liability to any other party in the event that any information exchanged or Books and Records, provided in good faith pursuant to this Section 6.5 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d).
(f) The rights and obligations granted under this Section 6.5 are subject to any specific limitationsthat, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in this Agreement.
(g) Nothing in this Section 6.5 shall require either party to violate any binding and enforceable agreement entered into prior to the date of this Agreement with any third parties regarding the confidentiality of confidential and proprietary information; provided, however, that in the event that either party is required under this Section 6.5 to disclose any such information, that destruction or disposal (i) such party shall use all commercially reasonable efforts to seek to obtain such third party’s consent provide no less than 30 days’ prior written notice to the disclosure other party of any such information.proposed destruction or disposal (which notice shall specify in detail which of the Books and Records is proposed to be so destroyed or disposed of) and
Appears in 1 contract
Samples: Asset Purchase Agreement (Maxwell Technologies Inc)
Access to Records and Personnel. (a) Until From and after the seventh Closing until the third (3rd) anniversary of the Closing DateClosing, each of Seller and Purchaser agrees to Parent shall provide, or cause to be provided, to the Stockholder Representative and its Representatives (each otheron behalf of the Stockholders), as soon as reasonably practicable after written request therefor and at the requesting partyStockholder Representative’s sole expense, reasonable access (including using commercially reasonable efforts to give access to third parties possessing information), during normal business hours, to Parent’s Representatives (including the Surviving Corporation and its Subsidiaries) and to any information books, records, documents, files and correspondence in the possession or under the control of such party Parent that the requesting party any Stockholder reasonably needs (i) to comply with reporting, disclosure, filing or other requirements requirements, in each case arising from the transactions contemplated by this Agreement, imposed on the requesting party Party (including under applicable Applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyparty in connection with the transactions contemplated hereby, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements requirements, in each case arising from the transactions contemplated by this Agreement, or (iii) to comply with its obligations under this Agreement; provided, however, that in the event that Parent shall not be required to provide access to or disclose information where such access or disclosure (y) is related to any party determines that claim against Parent or its Affiliates (including any such provision of information could be commercially detrimental, claim for indemnification) or (z) would violate any Applicable Law or agreementContract, or waive any attorney-client, client or other similar privilege, and Parent may redact information regarding itself or its Affiliates or otherwise not relating to a Stockholder or its Affiliates, and, in the parties event such provision of information could reasonably be expected to violate any Applicable Law or Contract or waive any attorney-client or other similar privilege, Parent shall take all commercially reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party Parent or its Representatives (including the Surviving Corporation and its Subsidiaries) that is provided to a requesting party the Stockholder Representative pursuant to this Section 6.5 6.03 shall be deemed to remain the property of Parent or the providing partyapplicable Representative. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(dc) Except as otherwise provided herein, each of Seller and Purchaser agrees to party shall use its commercially reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business (the “Books and the Purchased Assets Records”) in their such party’s respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, three (3) years following the Closing Date or for such longer period as may be required by Law or until Date. Following the expiration of the relevant representation such period, either party may destroy or warranty under any of the Transaction Documents and the resolution otherwise dispose of any related claim of indemnification related theretoBooks and Records; provided, that, prior to such destruction or disposal such party complies with any obligation with respect thereto under the Prior Acquisition Agreement.
(ed) No Without limiting the representations of the Company set forth in Article 3, no party shall have any liability to any other party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 6.03 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d6.03(c).
(e) From and after the Closing until the fifth (5th) anniversary thereof, unless otherwise required by Applicable Law or the rules and regulations of any stock exchange or quotation services on which such party’s stock is traded or quoted, each party shall hold confidentially, and shall cause its Affiliates and Representatives to hold confidentially, all information furnished or made available by a party (the “Provider”) to the other party (the “Receiver”) pursuant to this Section 6.03 and the terms of this Agreement and the other Transaction Documents which is not otherwise publicly disclosed as required by Applicable Law (all such information being referred to as “Confidential Information”). The parties shall, and shall direct their Representatives to, use the Confidential Information only in connection with the performance of this Agreement or as otherwise contemplated hereby. Information furnished or made available pursuant to this Section 6.03 shall not include such information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiver or its Representatives in violation of this Agreement, (ii) becomes available to the Receiver or its Representatives on a non-confidential basis from a Person other than the Provider or its Representatives who is not known by the Receiver to be bound by a confidentiality agreement with the Provider or any or its Representatives, or is not known by the Receiver to be under an obligation to the Provider or any of its Representatives not to transmit the information to the Receiver, (iii) was in the possession of the Receiver prior to disclosure by the Provider or its Representatives (provided, that any information regarding the Business in the possession of the Stockholder Representative or any Stockholder prior to the Closing Date shall not be subject to this provision) or (iv) is developed by the Receiver independent of any Confidential Information provided hereunder (provided, that any information regarding the Business in the possession of the Stockholder Representative or any Stockholder prior to the Closing Date shall not be subject to this provision). Nothing in this Section 6.03 shall affect Parent’s right in the Business following the Closing. In the event that the Receiver or any of its Representatives are required by Applicable Law or the rules and regulations of any stock exchange or quotation services on which such party’s stock is traded or quoted to disclose any Confidential Information, the Receiver shall provide the Provider with prompt notice of such request or requirement in order to enable the Provider to: (i) seek an appropriate protective order or other remedy, (ii) consult with the Receiver with respect to the Provider’s taking steps to resist or narrow the scope of such request or legal process or (iii) waive compliance, in whole or in part, with the terms of this Section 6.03(e). In the event that such protective order or other remedy is not obtained, or the Provider waives compliance, in whole or in part, with the terms of this Section 6.03(e), the Receiver or its Representative, as the case may be, shall disclose only that portion of the Confidential Information that the Receiver is advised in writing by its legal counsel is legally required to be disclosed and to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment.
(f) The rights and obligations granted under this Section 6.5 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in this Agreement.
(g) Nothing in this Section 6.5 6.03 shall require either any party to violate any binding and enforceable agreement entered into prior to the date of this Agreement with any third parties regarding the confidentiality of confidential and proprietary information or of customer information; provided, however, that in the event that either any party is required under this Section 6.5 6.03 to disclose any such information, that party shall provide notice of the basis for any such potential violation and use all commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such information and implement requisite procedures to enable the disclosure of such information.
Appears in 1 contract
Samples: Merger Agreement (NCR Corp)
Access to Records and Personnel. (a) Until From and after the seventh anniversary Closing until the end of the Closing DateOption Period, each of Seller and Purchaser agrees to Party shall provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting partyParty’s sole expense, reasonable access (including using Commercially Reasonable Efforts to give access to Third Parties possessing information), during normal business hours, to the other Party’s Representatives and to any information books, records, documents, files and correspondence in the possession or under the control of such party the other Party that the requesting party Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party Party (including under applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyParty in connection with the transactions contemplated hereby, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements arising from the transactions contemplated by this Agreement or (iii) to comply with its obligations under this Agreement; provided, however, that in the event that no Party shall be required to provide access to or disclose information where such access or disclosure is related to any party determines that claim for indemnification pursuant to Article IX or any other claim against a Party or such provision of information could be commercially detrimental, Party’s Affiliates or would violate any Law or agreement, or waive any attorney-clientclient or other similar privilege, and each Party may redact information regarding itself or its Affiliates or otherwise not relating to the other Party and its Affiliates, and, in the event such provision of information could reasonably be expected to violate any Law or agreement or waive any attorney-client or other similar privilege, the parties Parties shall take all reasonable measures Commercially Reasonable Efforts to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party Party that is provided to a requesting party Party or its Representatives pursuant to this Section 6.5 6.06 shall be deemed to remain the property of the providing partyParty. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(d) Except as otherwise provided herein, each of Seller and Purchaser agrees to use its reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business and the Purchased Assets in their respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, following the Closing Date or for such longer period as may be required by Law or until the expiration of the relevant representation or warranty under any of the Transaction Documents and the resolution of any related claim of indemnification related thereto.
(ec) No party Party shall have any liability to any other party Party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 6.06 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d).
(fd) The rights From and obligations granted under after the Closing until the fifth anniversary thereof, unless otherwise required by Law or the rules and regulations of any stock exchange or quotation services on which such Party’s stock is traded or quoted, each Party shall hold confidentially, and shall cause its Affiliates and Representatives to hold confidentially, all information furnished or made available by a Party (the “Provider”) to the other Party (the “Receiver”) or its Representatives pursuant to this Section 6.5 are 6.06 and the terms of this Agreement and the other Transaction Documents and the Company shall hold confidential, and shall cause its Affiliates and Representatives to hold confidential all information regarding the Business (all such information being referred to as “Confidential Information”). The Parties shall, and shall cause their Representatives to, use the Confidential Information only in connection with the performance of this Agreement or as otherwise contemplated hereby. “Confidential Information” furnished or made available pursuant to this Section 6.06 shall not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiver or its Representatives in violation of this Agreement; (ii) becomes available to the Receiver or its Representatives on a nonconfidential basis from a Person other than the Provider or its Affiliates or Representatives who is not known by the Receiver to be bound by a confidentiality agreement with the Provider or any of its Affiliates or Representatives, or is not known by the Receiver to be under an obligation to the Provider or any of its Affiliates or Representatives not to transmit the information to the Receiver; (iii) was in the possession of the Receiver prior to disclosure by the Provider or its Representatives (provided that any information regarding the Business in the possession of the Company or its Affiliates prior to the Closing Date or provided to the Company or its Affiliates pursuant to, or maintained by the Company or its Affiliates under, the Transition Services Agreement shall not be subject to this provision); or (iv) is developed by the Receiver independent of any specific limitationsConfidential Information provided hereunder (provided that any information regarding the Business in the possession of the Company or its Affiliates prior to the Closing Date or provided to the Company or its Affiliates pursuant to, qualifications or additional provisions on maintained by the sharingCompany or its Affiliates under, exchange or confidential treatment of information set forth in the Transition Services Agreement shall not be subject to this Agreement.
(g) provision). Nothing in this Section 6.5 6.06 shall require either party to violate any binding and enforceable agreement entered into prior to affect Purchaser’s rights in the date of this Agreement with any third parties regarding Purchased Assets following the confidentiality of confidential and proprietary information; provided, however, that in Closing. In the event that either party the Receiver or any of its Representatives are required by Law or the rules and regulations of any stock exchange or quotation services on which such Party’s stock is required under this Section 6.5 traded or quoted to disclose any Confidential Information, the Receiver shall provide the Provider with prompt notice of such informationrequest or requirement in order to enable the Provider to: (x) seek an appropriate protective order or other remedy; (y) consult with the Receiver with respect to the Provider’s taking steps to resist or narrow the scope of such request or legal process; or (z) waive compliance, in whole or in part, with the terms of this Section 6.06(d). In the event that party such protective order or other remedy is not obtained, or the Provider waives compliance, in whole or in part, with the terms of this Section 6.06(d), the Receiver or its Representative, as the case may be, shall use Commercially Reasonable Efforts to disclose only that portion of the Confidential Information that the Receiver is advised in writing by its legal counsel is legally required to be disclosed and to ensure that all commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such informationConfidential Information that is so disclosed will be accorded confidential treatment.
Appears in 1 contract
Access to Records and Personnel. (a) Until From and after the seventh anniversary Closing until the end of the Closing DateOption Period, each of Seller and Purchaser agrees to Party shall provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting partyParty’s sole expense, reasonable access (including using Commercially Reasonable Efforts to give access to Third Parties possessing information), during normal business hours, to the other Party’s Representatives and to any information books, records, documents, files and correspondence in the possession or under the control of such party the other Party that the requesting party Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party Party (including under applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyParty in connection with the transactions contemplated hereby, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements arising from the transactions contemplated by this Agreement or (iii) to comply with its obligations under this Agreement; provided, however, that in the event that no Party shall be required to provide access to or disclose information where such access or disclosure is related to any party determines that claim for indemnification pursuant to Article IX or any other claim against a Party or such provision of information could be commercially detrimental, Party’s Affiliates or would violate any Law or agreement, or waive any attorney-clientclient or other similar privilege, and each Party may redact information regarding itself or its Affiliates or otherwise not relating to the other Party and its Affiliates, and, in the event such provision of information could reasonably be expected to violate any Law or agreement or waive any attorney-client or other similar privilege, the parties Parties shall take all reasonable measures Commercially Reasonable Efforts to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party Party that is provided to a requesting party Party or its Representatives pursuant to this Section 6.5 6.06 shall be deemed to remain the property of the providing partyParty. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(d) Except as otherwise provided herein, each of Seller and Purchaser agrees to use its reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business and the Purchased Assets in their respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, following the Closing Date or for such longer period as may be required by Law or until the expiration of the relevant representation or warranty under any of the Transaction Documents and the resolution of any related claim of indemnification related thereto.
(ec) No party Party shall have any liability to any other party Party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 6.06 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d).
(fd) The rights From and obligations granted under after the Closing until the fifth anniversary thereof, unless otherwise required by Law or the rules and regulations of any stock exchange or quotation services on which such Party’s stock is traded or quoted, each Party shall hold confidentially, and shall cause its Affiliates and Representatives to hold confidentially, all information furnished or made available by a Party (the “Provider”) to the other Party (the “Receiver”) or its Representatives pursuant to this Section 6.5 are subject to any specific limitations, qualifications or additional provisions on 6.06 and the sharing, exchange or confidential treatment of information set forth in this Agreement.
(g) Nothing in this Section 6.5 shall require either party to violate any binding and enforceable agreement entered into prior to the date terms of this Agreement with any third parties and the other Transaction Documents and the Company shall hold confidential, and shall cause its Affiliates and Representatives to hold confidential all information regarding the confidentiality Business (all such information being referred to as “Confidential Information”). The Parties shall, and shall cause their Representatives to, use the Confidential Information only in connection with the performance of confidential and proprietary information; provided, however, that in the event that either party is required under this Section 6.5 to disclose any such information, that party shall use all commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such information.Agreement or as
Appears in 1 contract
Samples: Asset Purchase Agreement (Alj Regional Holdings Inc)
Access to Records and Personnel. (a) Until From and after the seventh Closing until the third (3rd) anniversary of the Closing DateClosing, each of Seller Indigo and Purchaser agrees to Parent shall provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting party’s 's sole expense, reasonable access (including using commercially reasonable efforts to give access to third parties possessing information), during normal business hours, to the other party's Representatives and to any information books, records, documents, files and correspondence in the possession or under the control of such the other party that the requesting party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party Party (including under applicable Applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyparty in connection with the transactions contemplated hereby, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements arising from the transactions contemplated by this Agreement, (iii) for use in any Proceeding relating to the Company IP or the infringement of the Intellectual Property Rights of another Person by the Company, or (iiiiv) to comply with its obligations under this Agreement; provided, however, that in the event that no party shall be required to provide access to or disclose information where such access or disclosure (y) is related to any claim against a party determines that or such party's Affiliates (including any such provision of information could be commercially detrimental, claim for indemnification) or (z) would violate any Applicable Law or agreementContract, or waive any attorney-clientclient or other similar privilege, and each party may redact information regarding itself or its Affiliates or otherwise not relating to the other party and its Affiliates, and, in the event such provision of information could reasonably be expected to violate any Applicable Law or Contract or waive any attorney-client or other similar privilege, the parties shall take all commercially reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party that is provided to a requesting party pursuant to this Section 6.5 6.03 shall be deemed to remain the property of the providing party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(dc) Except as otherwise provided herein, each of Seller and Purchaser agrees to party shall use its commercially reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business (the “Books and the Purchased Assets Records”) in their such party's respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, three years following the Closing Date or for such longer period as may be required by Law or until Date. Following the expiration of such period, either party may destroy or otherwise dispose of any Books and Records, provided that, prior to such destruction or disposal (i) such party shall use commercially reasonable efforts to provide no less than 30 days' prior written notice to the relevant representation other party of any such proposed destruction or warranty under disposal (which notice shall specify in detail which of the Books and Records is proposed to be so destroyed or disposed of) and (ii) if a recipient of such notice shall request in writing prior to the scheduled date for such destruction or disposal that any of the Transaction Documents information proposed to be destroyed or disposed of be delivered to such recipient, such party proposing the destruction or disposal shall, as promptly as practicable, arrange for the delivery of such of the Books and Records as was requested by the resolution recipient (it being understood that all reasonable out-of-pocket costs associated with the delivery of any related claim of indemnification related theretothe requested Books and Records shall be paid by such recipient).
(ed) No Without limiting the representations of Indigo set forth in Article 3, no party shall have any liability to any other party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 6.03 is found to be inaccurate. No party shall have any liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d6.03(c).
(e) From and after the Closing until the fifth anniversary thereof, unless otherwise required by Applicable Law or the rules and regulations of any stock exchange or quotation services on which such party's stock is traded or quoted, each party shall hold confidentially, and shall cause its Affiliates and Representatives to hold confidentially, all information furnished or made available by a party (the “Provider”) to the other party (the “Receiver”) pursuant to this Section 6.03 and the terms of this Agreement and the other Transaction Documents and Indigo shall, and shall cause its Representatives to hold confidential all confidential or proprietary information relating to the Company or the Business (all such information being referred to as “Confidential Information”). The parties shall, and shall cause their Representatives to, use the Confidential Information only in connection with the performance of this Agreement or as otherwise contemplated hereby. Confidential Information furnished or made available pursuant to this Section 6.03 shall not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiver or its Representatives in violation of this Agreement, (ii) becomes available to the Receiver or its Representatives on a non-confidential basis from a Person other than the Provider or its Representatives who is not known by the Receiver to be bound by a confidentiality agreement with the Provider or any or its Representatives, or is not known by the Receiver to be under an obligation to the Provider or any of its Representatives not to transmit the information to the Receiver, (iii) was in the possession of the Receiver prior to disclosure by the Provider or its Representatives (provided, that any information regarding the Business in the possession of Indigo prior to the Closing Date or provided to Indigo pursuant to, or maintained by Indigo under, the Transition Services Agreement shall not be subject to this provision) or (iv) is developed by the Receiver independent of any Confidential Information provided hereunder (provided, that any information regarding the Business in the possession of Indigo prior to the Closing Date or provided to Indigo pursuant to, or maintained by Indigo under, the Transition Services Agreement shall not be subject to this provision). Nothing in this Section 6.03 shall affect Parent's rights in the Business following the Closing. In the event that the Receiver or any of its Representatives are required by Applicable Law or the rules and regulations of any stock exchange or quotation services on which such party's stock is traded or quoted to disclose any Confidential Information, the Receiver shall provide the Provider with prompt notice of such request or requirement in order to enable the Provider to: (i) seek an appropriate protective order or other remedy, (ii) consult with the Receiver with respect to the Provider's taking steps to resist or narrow the scope of such request or legal process or (iii) waive compliance, in whole or in part, with the terms of this Section 6.03(e). In the event that such protective order or other remedy is not obtained, or the Provider waives compliance, in whole or in part, with the terms of this Section 6.03(e), the Receiver or its Representative, as the case may be, shall use commercially reasonable efforts to disclose only that portion of the Confidential Information that the Receiver is advised in writing by its legal counsel is legally required to be disclosed and to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment.
(f) The rights and obligations granted under this Section 6.5 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in this Agreement.
(g) Nothing in this Section 6.5 6.03 shall require either any party to violate any binding and enforceable agreement entered into prior to the date of this Agreement with any third parties regarding the confidentiality of confidential and proprietary information or of customer information; provided, however, that in the event that either any party is required under this Section 6.5 6.03 to disclose any such information, that party shall provide notice of the basis for any such potential violation and use all commercially reasonable efforts to seek to obtain such third party’s 's consent to the disclosure of such information and implement requisite procedures to enable the disclosure of such information.
Appears in 1 contract
Access to Records and Personnel. (a) Until From and after the seventh Closing until the third anniversary of the Closing DateClosing, each of Seller and Purchaser agrees to shall provide, or cause to be provided, to each other, as soon as reasonably practicable after written request therefor and at the requesting party’s sole expense, reasonable access (including using commercially reasonable efforts to give access to third parties possessing information), during normal business hours, to the other party’s Representatives and to any information books, records, documents, files and correspondence in the possession or under the control of such the other party related to the Business that the requesting party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting party Party (including under applicable Applicable securities Laws) by a Governmental Authority (including any Tax authority) having jurisdiction over the requesting partyparty in connection with the Transactions, (ii) for use in any other judicial, regulatory, administrative or other proceeding Proceeding or in order to satisfy Tax, audit, accounting, claims, regulatory, litigation or other similar requirements requirements, (iii) for use in any Proceeding relating to the infringement of the Intellectual Property Rights of another Person or (iiiiv) to comply with its obligations under this Agreement; provided, however, that in the event that no party shall be required to provide access to or disclose information where such access or disclosure (y) is related to any claim against a party determines that any or such provision of information could be commercially detrimental, party’s Affiliates or (z) would violate any Applicable Law or agreementContract, or waive any attorney-clientclient or other similar privilege, and each party may redact information regarding itself or its Affiliates or otherwise not relating to the other party and its Affiliates, and, in the event such provision of information could reasonably be expected to violate any Applicable Law or Contract or waive any attorney-client or other similar privilege, the parties shall take all commercially reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.
(b) Until the seventh anniversary of the Closing DateExcept as otherwise provided in this Agreement, each of Seller and Purchaser shall provide, or cause to be provided, to the other party in such form as such requesting party shall reasonably request, at no charge to such party, all financial and other data and information as such party reasonably determines to be necessary or advisable in order to prepare its financial statements and reports or filings, including Tax Returns, with any Governmental Authority; provided, however, that no party shall be required to provide or cause to be provided any financial or other data or information if doing so would result in an undue burden on such party or require the incurrence of an unreasonable expense by such party. Seller shall fully cooperate with and assist Purchaser and its employees, auditors, advisors, attorneys, agents and representatives to the extent necessary in connection with (i) the preparation of any financial statements (including pro forma financial statements) required to be prepared, filed or presented by Purchaser with respect to the Business or the transactions contemplated by this Agreement by any Governmental Authority, securities or other Laws or the rules of any stock exchange applicable to Purchaser; and (ii) any statement or certification with respect thereto required to be made by any officer or agent of Purchaser under applicable securities or other Laws or the regulation of any stock exchange applicable to Purchaser, and will cause the employees, auditors, advisors, attorneys, agents and representatives of Purchaser to have access at all reasonable times to the personnel, properties, books, records, data, and work papers of Seller, the Other Sellers and their auditors for such purposes.
(c) Any information owned by a party that is provided to a requesting party pursuant to this Section 6.5 5.02 shall be deemed to remain the property of the providing party. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any such information.
(dc) Except as otherwise provided herein, each of Seller and Purchaser agrees to party shall use its commercially reasonable commercial efforts to retain the books, records, documents, instruments, accounts, correspondence, writings, evidences of title and other papers relating to the Business (the “Books and the Purchased Assets Records”) in their such party’s respective possession or control for a commercially reasonable period of time, consistent with their regular document retention policies, three years following the Closing Date or for such longer period as may be required by Law or until Date. Following the expiration of such period, either party may destroy or otherwise dispose of any Books and Records; provided that, prior to such destruction or disposal (i) such party shall use commercially reasonable efforts to provide no less than 30 days’ prior written notice to the relevant representation other party of any such proposed destruction or warranty under disposal (which notice shall specify in detail which of the Books and Records is proposed to be so destroyed or disposed of) and (ii) if a recipient of such notice shall request in writing prior to the scheduled date for such destruction or disposal that any of the Transaction Documents information proposed to be destroyed or disposed of be delivered to such recipient, such party proposing the destruction or disposal shall, as promptly as practicable, arrange for the delivery of such of the Books and Records as was requested by the resolution recipient (it being understood that all reasonable out-of-pocket costs associated with the delivery of any related claim of indemnification related theretothe requested Books and Records shall be paid by such recipient).
(ed) No Without limiting the representations of Seller set forth in Article 3, no party shall have any liability Liability to any other party in the event that any information exchanged or provided in good faith pursuant to this Section 6.5 5.02 is found to be inaccurate. No party shall have any liability Liability to any other party if any information is destroyed or lost after reasonable commercial efforts by such party to comply with the provisions of Section 6.5(d5.02(c).
(e) From and after the Closing until the fifth anniversary thereof, unless otherwise required by Applicable Law or the rules and regulations of any stock exchange or quotation services on which such party’s stock is traded or quoted, each party shall hold confidentially, and shall cause its Affiliates and Representatives to hold confidentially, all information furnished or made available by a party (the “Provider”) to the other party (the “Receiver”) pursuant to this Section 5.02 and the terms of this Agreement (all such information being referred to as “Confidential Information”). The parties shall, and shall cause their Representatives to, use the Confidential Information only in connection with the performance of this Agreement or as otherwise contemplated hereby. Confidential Information furnished or made available pursuant to this Section 5.02 shall not include information which (i) is or becomes generally available to the public other than as a result of a disclosure by the Receiver or its Representatives in violation of this Agreement, (ii) becomes available to the Receiver or its Representatives on a non-confidential basis from a Person other than the Provider or its Representatives who is not known by the Receiver to be bound by a confidentiality agreement with the Provider or any or its Representatives, or is not known by the Receiver to be under an obligation to the Provider or any of its Representatives not to transmit the information to the Receiver, (iii) was in the possession of the Receiver prior to disclosure by the Provider or its Representatives (provided, that any information regarding the Business in the possession of Seller prior to the Closing Date or provided to Seller pursuant to, or maintained by Seller under, the Agent Channel Agreement or Transition Services Agreement shall not be subject to this provision) or (iv) is developed by the Receiver independent of any Confidential Information provided hereunder (provided, that any information regarding the Business in the possession of Seller prior to the Closing Date or provided to Seller pursuant to, or maintained by Seller under, the Agent Channel Agreement or the Transition Services Agreement shall not be subject to this provision). Nothing in this Section 5.02 shall affect Purchaser’s rights in the Business following the Closing. In the event that the Receiver or any of its Representatives are required by Applicable Law or the rules and regulations of any stock exchange or quotation services on which such party’s stock is traded or quoted to disclose any Confidential Information, the Receiver shall, to the extent not prohibited by Applicable Law, provide the Provider with prompt notice of such request or requirement in order to enable the Provider to: (i) seek an appropriate protective order or other remedy, (ii) consult with the Receiver with respect to the Provider’s taking steps to resist or narrow the scope of such request or legal process or (iii) waive compliance, in whole or in part, with the terms of this Section 5.02(e). In the event that such protective order or other remedy is not obtained, or the Provider waives compliance, in whole or in part, with the terms of this Section 5.02(e), the Receiver or its Representative, as the case may be, shall use commercially reasonable efforts to disclose only that portion of the Confidential Information that the Receiver or such Representative is advised in writing by its legal counsel is legally required to be disclosed and to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment.
(f) The rights and obligations granted under this Section 6.5 are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange or confidential treatment of information set forth in this Agreement.
(g) Nothing in this Section 6.5 5.02 shall require either any party to violate any binding and enforceable agreement entered into prior to the date of this Agreement with any third parties regarding the confidentiality of confidential and proprietary information or of customer information; provided, however, that in the event that either any party is required under this Section 6.5 5.02 to disclose any such information, that party shall provide notice of the basis for any such potential violation and use all commercially reasonable efforts to seek to obtain such third party’s consent to the disclosure of such information and implement requisite procedures to enable the disclosure of such information.
Appears in 1 contract