Confidentiality; Access. (a) The parties acknowledge that the Parent (or one of Parent’s Affiliates) and TripleTree (on behalf of the Company) have previously executed that certain confidentiality agreement, dated June 17, 2015 (as amended, the “Confidentiality Agreement”). Except as may be required by applicable Law or the rules of any applicable national securities exchange or pursuant to the terms and provisions of the Confidentiality Agreement, the parties will hold any information which is non-public in confidence in accordance with the terms of the Confidentiality Agreement and, in the event this Agreement is terminated for any reason, the parties shall promptly return or destroy such information in accordance with the Confidentiality Agreement. (b) Subject to applicable Law and upon reasonable notice, the Company shall afford Parent and its Representatives reasonable access, during normal business hours during the period prior to the Effective Time, to its properties, books, contracts and records and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants and other professionals), and during such period, the Company shall furnish promptly to Parent such information concerning its business, properties and personnel as Parent may reasonably request; provided, however, that the Company may restrict the foregoing access to the extent that (i) any applicable Law requires such party or its Subsidiaries to restrict or prohibit access to any such properties or information to Parent, (ii) such access 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 or (iii) such access would be in breach of any confidentiality obligation, commitment or provision by which the Company is bound or affected as of the date hereof, which confidentiality obligation, commitment or provision shall be disclosed to Parent, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to the exchange of such information, and such information shall not be exchanged to the extent such counsel to the Company reasonably advises against such exchange. In addition, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall be subject to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases and shall not include the right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessment.
Appears in 1 contract
Confidentiality; Access. (a) The Each of Seller and Buyer shall, prior to the Closing, maintain the confidentiality of this sale and purchase and shall not, except as required by law or governmental regulation applicable to Seller or Buyer, as the case may be, disclose the terms of this Agreement or of such sale and purchase to any third parties acknowledge that other than the Parent (or one of Parent’s Affiliates) and TripleTree (on behalf principals of the Company) have previously executed Title Company and such other persons whose assistance is required in carrying out the terms of this Agreement. Neither Seller nor Buyer shall at any time issue a press release or otherwise communicate with media representatives regarding this sale and purchase unless such release or communication has received the prior approval of the other party hereto, except that certain confidentiality agreement, dated June 17, 2015 Seller may communicate the existence and the terms of this Agreement and the transactions contemplated hereby to its and its Affiliates’ employees who are employed at the Property without the approval of Buyer. Buyer agrees that all documents and information regarding the Property and Other Assets of any nature made available to it by Seller or Seller’s agents (as amendedcollectively, the “Confidentiality AgreementProprietary Information”). Except as may be required by applicable Law or ) are confidential and Buyer shall not disclose any Proprietary Information to any other Person except those of its Representatives assisting it with the rules of any applicable national securities exchange or pursuant to the terms and provisions analysis of the Confidentiality AgreementPurchased Assets, and only after procuring such Person’s agreement to abide by these confidentiality restrictions. In the parties will hold any information which is non-public in confidence in accordance with event the terms purchase and sale of the Confidentiality Agreement and, in the event this Agreement is terminated Purchased Assets contemplated hereby fails to close for any reasonreason whatsoever, the parties shall promptly Buyer shall, at its sole option, return to Seller, or cause to be returned to Seller, or destroy such information in accordance with all copies of all Proprietary Information. This Section 4.2(a) shall survive the Confidentiality Closing or termination of the Agreement.
(b) Subject to applicable Law and From the date hereof until the Closing, upon reasonable notice, the Company shall afford Parent and its Representatives reasonable access, during normal business hours during the period prior to the Effective Time, to its properties, books, contracts and records and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants and other professionals), and during such period, the Company shall furnish promptly to Parent such information concerning its business, properties and personnel as Parent may reasonably request; provided, however, that the Company may restrict the foregoing access to the extent that (i) any applicable Law requires such party or Seller shall give Buyer, its Subsidiaries to restrict or prohibit engineers, architects and other Representatives reasonable access to and the right to inspect the Property and the other Purchased Assets and the offices, property, records, files, financial information and books of account of Buyer insofar as the same concern or affect any such properties of the Purchased Assets or information to ParentSeller’s operations, (ii) furnish Buyer and its representatives with such financial, operating and other data and information related to the Purchased Assets as Buyer or any of its representatives may reasonably request and (iii) instruct the employees and representatives of Seller to cooperate with Buyer in its investigation of the Purchased Assets.
(c) Anything to the contrary in Section 4.2(b) notwithstanding, (i) access would give rise rights pursuant to Section 4.2(b) shall be exercised in such manner as not to interfere unreasonably with the conduct of the business of Seller, (ii) Seller may withhold any document (or portions thereof) or information (A) that is subject to the terms of a material risk of waiving any non-disclosure agreement with a third party, (B) that may constitute privileged attorney-client privilege, communications or attorney work product doctrine and the transfer of which, or other applicable the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege applicable to such documents or information or (iiiC) such access would be in breach of any confidentiality obligation, commitment or provision by which the Company is bound or affected as of the date hereof, which confidentiality obligation, commitment or provision shall be disclosed to Parent, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to if the exchange of such document (or portion thereof) or information, as determined by Seller’s counsel, could conflict with applicable Laws, and such information (iii) neither Seller nor any of Seller’s Affiliates shall have any obligation to provide Buyer or its Representatives (A) access to any tax return filed by Seller, or any related materials, in each case not be exchanged relating exclusively to the Purchased Assets, (B) access to any individual personnel or payroll records to the extent such counsel prohibited by Law, or (C) access to the Company reasonably advises against Property to conduct any subsurface or invasive environmental investigation, or sampling or testing of any environmental medium.
(d) Prior to any entry upon the Property by Buyer or Buyer’s Representatives, Buyer shall deliver to Seller an original endorsement to Buyer or Buyer’s Representative’s commercial general liability insurance policy which evidences that Buyer or Buyer’s Representative is carrying a commercial general liability insurance policy with a financially responsible insurance company acceptable to Seller, covering the activities of Buyer, and Buyer’ Representatives on or upon the Property. Such endorsement to such exchange. In additioninsurance policy shall evidence that such insurance policy shall have a per occurrence limit of at least $2,000,000 and an aggregate limit of at least $3,000,000, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall name Seller as an additional insured, shall be subject primary and non-contributing with any other insurance available to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases Seller and shall not include the right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessmentcontain a full waiver of subrogation clause.
Appears in 1 contract
Samples: Asset Purchase Agreement (Atkore International Holdings Inc.)
Confidentiality; Access. (a) The parties acknowledge that the Parent (or one of Parent’s Affiliates) WWS Acquisition, LLC and TripleTree (on behalf of the Company) Buyer have previously executed that certain confidentiality agreementa letter agreement effective as of May 23, dated June 17, 2015 2018 (as amended, the “Confidentiality Agreement”), the entirety of which will continue, except as expressly provided by this Agreement, in full force and effect in accordance its respective terms, notwithstanding the execution and delivery of this Agreement, until the Closing, at which time the Confidentiality Agreement shall terminate and be of no further force or effect. Except as may be required by applicable Law or The parties acknowledge and agree that the rules existence of any applicable national securities exchange or pursuant to this Agreement, the Ancillary Agreements and the Disclosure Schedule and the documents and instruments contemplated hereby and thereby, the terms and provisions of conditions hereof and thereof, and the Confidentiality Agreementnegotiation hereof and thereof and the transactions contemplated hereby and thereby, the parties will hold any information which is non-public in confidence in accordance with the terms of the Confidentiality Agreement and, in the event this Agreement is terminated for any reason, the parties shall promptly return or destroy such information in accordance with constitute “Evaluation Material” under the Confidentiality Agreement.
(b) Subject to the terms of the Confidentiality Agreement and other confidentiality obligations and similar restrictions that may be applicable Law to information in the possession of the Company that has been furnished by third parties from time to time, during the period following the date hereof and prior to the Closing, upon reasonable noticenotice and during normal business hours, the Company shall, and shall cause the officers and employees of the Company to, (i) afford Parent the officers, employees and authorized agents and Representatives of Buyer reasonable access to the offices, properties, senior executives, and books and records of the Company Members and (ii) furnish to the officers, employees and authorized agents and Representatives of Buyer such additional financial and operating data and other information regarding the assets, properties and business to the extent related to the Company Members as Buyer may from time to time reasonably request in order to assist Buyer in fulfilling its obligations under this Agreement or facilitate the transactions contemplated by this Agreement; provided that (A) any such access shall be conducted in such a manner as not to interfere unreasonably with the operation of the Company; (B) Buyer or any of its Representatives shall not contact or have any discussions with any of the officers, employees, landlords/sub-landlords, tenants/subtenants, customers or vendors of the Company or any Company Subsidiary without the prior written consent of the Company; (C) Buyer shall be responsible for any damage to any real property owned or leased by the Company or any Company Subsidiary or any other assets or property of the Company or any Company Subsidiary caused by Buyer or any of its Representatives; (D) the Company shall not be required to disclose any information related to the sale of the Company or any activities in connection therewith, including the solicitation of proposals from third parties in connection with the sale of the Company or its Representatives’ evaluation thereof, including projections, financial or other information related thereto; and (E) the Company shall not be required to confer, afford such access or furnish such copies or other information (x) to the extent that doing so would result in the breach of any confidentiality or similar agreement to which the Company or any Company Subsidiary is a party as of the date of this Agreement, (y) that is competitively sensitive, or (z) the disclosure of which would reasonably be expected to result in the loss or impairment of attorney-client privilege; provided that the Company shall use its reasonable accessefforts to allow for such access or disclosure in a manner that does not result in a breach of such agreement or a loss of attorney-client privilege.
(c) For a period of seven years following the Closing, Buyer shall preserve and keep, or cause to be preserved and kept, all original books and records in respect of the Company and each Company Subsidiary in the possession of Buyer, or its Affiliates, provided that in accordance with the Company’s current practices, such copies may be maintained in electronic or digital form. The Seller Representative, upon reasonable notice and for any reasonable business purpose to which the Seller Representative or any Seller or Additional Seller is a party, and at the Seller Representative’s own cost and expense, shall have access during normal business hours during the period prior to the Effective Timeexamine, to its properties, books, contracts inspect and copy such books and records and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants and other professionals), and during such seven-year period, the Company shall furnish promptly to Parent such information concerning its business, properties and personnel as Parent may reasonably request; provided, however, that the Company may restrict the foregoing access to the extent that (i) any applicable Law requires such party or its Subsidiaries to restrict or prohibit access to any such properties or information to Parent, (ii) such access 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 or (iii) such access would be in breach of any confidentiality obligation, commitment or provision by which the Company is bound or affected as of the date hereof, which confidentiality obligation, commitment or provision shall be disclosed to Parent, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to the exchange of such information, and such information shall not be exchanged to the extent such counsel to the Company reasonably advises against such exchange. In addition, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall be subject to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases and shall not include the right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessment.
Appears in 1 contract
Confidentiality; Access. (a) The parties Parties acknowledge that the Parent (or one of Parent’s Affiliates) Company and TripleTree (on behalf of the Company) Buyer have previously executed that certain confidentiality agreementa letter agreement effective as of December 5, dated June 17, 2015 2023 (as amended, the “Confidentiality Agreement”), the entirety of which will continue in full force and effect in accordance its respective terms, notwithstanding the execution and delivery of this Agreement, until the Closing, at which time the Confidentiality Agreement shall terminate and be of no further force or effect. Except as may be required by applicable Law or The Parties acknowledge and agree that the rules existence of any applicable national securities exchange or pursuant to this Agreement, the Ancillary Agreements and the Disclosure Schedule, the documents and instruments contemplated hereby and thereby, the terms and provisions of conditions hereof and thereof, the negotiations hereof and thereof and the transactions contemplated hereby and thereby, shall constitute “Evaluation Material” under the Confidentiality Agreement.
(i) From and after the Closing, each Seller shall hold, and shall use reasonable best efforts to cause such Seller’s controlled Affiliates, and shall direct its and their respective Representatives, to hold, in strict confidence from any Person (other than Buyer and its Affiliates (including, after the Closing, the parties will hold Company Group)) all confidential information of and related to the Company Group and disclosed or made known to such Seller prior to the Closing or otherwise disclosed to such Seller by or on behalf of the Company Group following the Closing pursuant to this Agreement (such information, “Confidential Information”); provided, that Confidential Information shall not include, and nothing in this Section 7.2(b)(i) shall prevent a Seller’s or its controlled Affiliates’ disclosure of, any information which that (A) is nonor becomes publicly available through no violation of this Section 7.2(b)(i) by such Seller or its controlled Affiliates, (B) is received from a third party not known by such Seller or its controlled Affiliates to have violated an obligation of confidentiality to the Company Group in disclosing such information or (C) such Seller or its Affiliates can reasonably demonstrate is independently developed by such Seller or its Affiliates without use of or reference to the Confidential Information.
(ii) Notwithstanding anything to the contrary in Section 7.2(b)(i), each Seller and its controlled Affiliates and its and their respective Representatives shall be entitled to disclose Confidential Information (A) if such Person is requested or required to disclose such Confidential Information by judicial or administrative process (including in connection with obtaining the necessary approvals of this Agreement and the transactions contemplated hereby of Governmental Authorities) or by other requirements of Law (including any request or requirement by any regulator, bank examiner or auditor or self-public regulatory or supervisory authority), (B) in confidence connection with an Action or claim by a Party in accordance pursuit of its rights or in the exercise of its remedies under this Agreement or any Ancillary Agreement, (C) if such Seller or Affiliate makes disclosures of such Confidential Information to its Representatives as necessary to assist such Person in exercising its rights or satisfying and performing its covenants and obligations under this Agreement, and so long as such Representative is informed of the confidential nature of such information and directed to comply with the obligations set forth in this Section 7.2(b), (D) to their respective Affiliates or Representatives who reasonably need to know such information, including in connection with the income Tax aspects and consequences of the transactions contemplated hereby, and so long as such Affiliates and Representatives are informed of the confidential nature of such information and directed to comply with the obligations set forth in this Section 7.2(b)(i), (E) to their and their respective Affiliates’ direct and indirect partners, investors, equityholders or financing sources (or prospective partners, investors, equityholders or financing sources) in connection with fundraising, marketing, informational, transactional or reporting activities in the ordinary course of business, or (F) with respect to any Seller that is a Continuing Employee, in the context of such Seller’s employment with Buyer or its Affiliates (including the Company Group) following the Closing.
(iii) Receipt of Confidential Information shall not be imputed to any entity solely by virtue of the fact that any Seller’s or any of its controlled Affiliates’ directors, officers, employees, agents, contractors, consultants or advisors are also directors, officers, employees, agents, contractors, consultants or advisors of such entity (each, a “Dual Hat Individual”); provided, that such Dual Hat Individual does not disclose Confidential Information to other persons at such entity who are not Dual Hat Individuals and otherwise complies with this Section 7.2(b).
(iv) Buyer acknowledges that, in the ordinary course of their respective businesses, certain Sellers and their Affiliates pursue, acquire, manage and serve on the boards of companies that may be competitors or potential competitors of the Company Group. Except insofar as the terms of Section 7.2(b)(i) restrict the disclosure of Company Confidential Information, nothing in Section 7.2(b)(i) shall prevent a Seller or its Affiliates from (A) engaging in or operating any business, (B) entering into any agreement or business relationship with any third party, or (C) evaluating or engaging in investment discussions with, or investing in, any third party, whether or not competitive with the Company Group.
(c) Subject to the terms of the Confidentiality Agreement and, and other confidentiality obligations and similar restrictions that may be applicable to information in the event possession of the Company that has been furnished by third parties from time to time, during the period following the Agreement Date and prior to the Closing, upon reasonable notice and during normal business hours, the Company shall, and shall cause the Company Subsidiaries and the officers and employees of the Company Group to, (i) afford the officers, employees and authorized agents and Representatives of Buyer reasonable access to the offices, properties, senior executives, and books and records of the Company Group, and (ii) furnish to the officers, employees and authorized agents and Representatives of Buyer such additional financial and operating data and other information in the possession of the Company Group or the Sellers regarding the assets, properties and business of the Company Group or Blocker as Buyer may from time to time reasonably request; provided that: (A) any such access shall be conducted in such a manner as not to interfere unreasonably with the operation of the Company Group or Blocker; (B) neither Buyer nor any of its Representatives shall contact or have any discussions with any of the officers, employees, landlords/sub-landlords, tenants/subtenants, customers, vendors or other business relations of the Company or any Company Subsidiary regarding the business of Blocker or the Company Group or the transactions contemplated by this Agreement is terminated for without the prior written consent of the Company; (C) neither the Company Group nor Blocker shall be required to disclose any reasoninformation related to the sale of the Company or any activities in connection therewith, including the solicitation of proposals from third parties in connection with the sale of the Company or its Representatives’ evaluation thereof, including projections, financial or other information related thereto; (D) Buyer and its Representatives shall not be permitted to perform any environmental sampling or testing at any of the Leased Real Property, including sampling or testing of soil, groundwater, surface water, building materials, or air emissions or wastewater discharges; and (E) neither the Company Group nor Blocker be required to confer, afford such access or furnish such copies or other information (1) to the extent that any applicable Law requires Blocker, the parties Company or any Company Subsidiary to restrict or otherwise prohibit access to such documents or information, (2) to the extent that doing so would cause Blocker, the Company or any Company Subsidiary to be in breach of, or give a third party the right to terminate or accelerate rights under, any Contract to which such Person is a party as of the Agreement Date, (3) that is competitively sensitive, or (4) the disclosure of which would reasonably be expected to result in the loss or impairment of attorney-client privilege; provided that the Company shall promptly return use its commercially reasonable efforts to allow for such access or destroy such information disclosure in accordance with the Confidentiality Agreementa manner that does not result in a violation of Law, breach of Contract or loss of attorney-client privilege.
(bd) Subject For a period of seven (7) years following the Closing, Buyer shall preserve and keep, or cause to applicable Law be preserved and upon reasonable noticekept, all books and records in respect of Blocker, the Company and each Company Subsidiary in existence on the Closing Date and in the possession of Buyer or its Affiliates, provided that such copies may be maintained in electronic or digital form. The Seller Representative, upon reasonable notice and for any reasonable business purpose, and at the Seller Representative’s own cost and expense, shall afford Parent and its Representatives have reasonable access, access during normal business hours during the period prior to the Effective Timeexamine, to its properties, books, contracts inspect and copy such books and records and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants and other professionals), and during such seven (7) year period, the Company shall furnish promptly to Parent such information concerning its business, properties and personnel as Parent may reasonably request; provided, however, that the Company may restrict the foregoing access to the extent that however (i) any applicable Law requires such party access shall be conducted in such a manner as not to interfere unreasonably with the operation of the business of Buyer or its Subsidiaries to restrict or prohibit access to any such properties or information to Parentthe Company Group, Group, and (ii) the foregoing shall not apply with respect to any information the disclosure of which would, in the Buyer’s reasonable discretion, waive any privilege, violate any Law or breach any duty of confidentiality of any Person; provided, further, that Buyer shall use its commercially reasonable efforts to allow for such access would give rise to or disclosure in a material risk manner that does not result in a violation of waiving any attorney-client privilegeLaw, work product doctrine or other applicable privilege applicable to such documents or information or (iii) such access would be in breach of duty of confidentiality of any confidentiality obligation, commitment Person or provision by which the Company is bound or affected as loss of the date hereof, which confidentiality obligation, commitment or provision shall be disclosed to Parent, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to the exchange of such information, and such information shall not be exchanged to the extent such counsel to the Company reasonably advises against such exchange. In addition, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall be subject to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases and shall not include the right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessmentprivilege.
Appears in 1 contract
Confidentiality; Access. (a) The parties acknowledge that Parties hereby agree to treat the Parent (or one contents of Parent’s Affiliates) and TripleTree (on behalf of the Company) have previously executed that certain confidentiality agreement, dated June 17, 2015 (as amended, the “Confidentiality Agreement”). Except as may be required by applicable Law or the rules of any applicable national securities exchange or pursuant to the terms and provisions of the Confidentiality this Agreement, all nonpublic information obtained in connection with this Agreement and the parties will hold any information which is non-public in confidence Transactions as confidential in accordance with the terms of that certain Confidentiality Agreement between Cobham and Buyer, dated as of September 20, 2017 (the “Confidentiality Agreement”) which shall continue in full force and effect until the Closing Date, at which time the Confidentiality Agreement andAgreement, in and the event obligations of the Parties under this Section 5.4, shall terminate and be of no further force or effect. If this Agreement is terminated is, for any reason, terminated prior to the parties Closing, the Confidentiality Agreement shall promptly return or destroy such information continue in full force and effect in accordance with its terms. The foregoing and the Confidentiality AgreementAgreement shall not prevent a Party from making any disclosure (x) as may be required by Law or the rules and regulations of any stock exchange (including, for the avoidance of doubt, the London Stock Exchange and NASDAQ) upon which the securities of the Sellers or Buyer, as applicable, or any of their respective Affiliates, are 54 listed, and in the event such disclosure is required, a Party may include such information as it customarily discloses with respect to similar transactions; and (y) as may be necessary or desirable in connection with any Governmental Filings. For the avoidance of doubt, the non-solicitation provision set forth in the Confidentiality Agreement shall not prevent Buyer from having discussions prior to Closing with respect to the Entity Employees solely regarding their roles with Buyer and the Conveyed Entities after the Closing.
(b) Subject to applicable Law the Confidentiality Agreement and Section 5.4(a), from the date hereof until the Closing, or such earlier date on which this Agreement may be terminated in accordance with its terms, upon reasonable notice, the Company Sellers shall, and shall cause their respective Affiliates (including the Conveyed Entities) and each of its and their respective representatives to: (i) afford Parent Buyer and its Representatives authorized representatives reasonable access, during normal business hours during the period prior access to the Effective Timeofficers, to its personnel, properties, booksContracts, contracts and records Business Records of the Conveyed Entities and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants ii) furnish to the authorized representatives of Buyer such additional financial and operating data and other professionals), information regarding the Conveyed Entities and during such period, the Company shall furnish promptly their respective businesses and operations as Buyer and its authorized representatives may from time to Parent such information concerning its business, properties and personnel as Parent may time reasonably request; provided, however, that and such access shall be during normal business hours and in such a manner as not to interfere unreasonably with the Company may restrict the foregoing normal operations of Conveyed Entities. All requests by Buyer for access pursuant to this Section 5.4(b) shall be submitted or directed to the extent that (iindividuals specified in Section 5.4(b) any applicable Law requires such party or its Subsidiaries to restrict or prohibit access to any such properties or information to Parent, (ii) such access 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 or (iii) such access would be in breach of any confidentiality obligation, commitment or provision by which the Company is bound or affected as of the date hereofSeller Disclosure Schedule or, which confidentiality obligationin each case, commitment or provision shall be disclosed such other individuals as the Sellers may designate in writing from time to Parenttime. For the avoidance of doubt, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to the exchange of such informationClosing, and such information Buyer shall not be exchanged to the extent such counsel to the Company reasonably advises against such exchange. In addition, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall be subject to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases and shall not include the have no right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessmentsubsurface investigations of the Real Property.
Appears in 1 contract
Samples: Stock Purchase Agreement
Confidentiality; Access. (a) The parties acknowledge that the Parent (or one of Parent’s Affiliates) and TripleTree (on behalf of the Company) have previously executed that certain confidentiality agreement, dated June 17, 2015 (as amended, the “Confidentiality Agreement”). Except as may be required by applicable Law or the rules of any applicable national securities exchange or pursuant In addition to the terms terms, provisions and provisions of the Confidentiality Agreement, the parties will hold any information which is non-public in confidence in accordance with the terms covenants of the Confidentiality Agreement anddated July 5, 2005 between Buyer and Seller (the "Confidentiality Agreement"), which shall remain in full force and effect until Closing, Buyer acknowledges that, in the course of its investigation of the Business, Buyer and its representatives have and will become aware of confidential information and documents of the Business, and that its use of such confidential information and documents, or communication of such information to third parties, could be detrimental to the Business. Buyer covenants that prior to Closing, all information and documents concerning the Business reviewed by Buyer or its representatives in connection with this Agreement or the transactions contemplated hereby shall be maintained in confidence and shall not be disclosed or used by Buyer or its representatives without Seller's prior written consent, unless Buyer can demonstrate that such information is (i) otherwise publicly available, (ii) required to be disclosed pursuant to judicial order, regulation or Law, or (iii) required to be disclosed by the rules of a securities exchange on which Buyer may from time to time be listed. In the event that Buyer or any of its representatives becomes legally compelled to disclose any such information or documents referred to in this paragraph, Buyer shall, to the extent reasonably practicable, provide Seller with prompt written notice before such disclosure, sufficient to enable Seller either to seek a protective order, at its expense, or another appropriate remedy preventing or prohibiting such disclosure or to waive compliance with the provisions of this Section 5.1(a), or both. With respect to information and documents related to the Business, at Seller's request, in the event that the Closing shall not occur, or as soon as practicable following termination of this Agreement is terminated for Agreement: (i) Buyer shall, and shall cause its representatives to, promptly destroy all information and documents concerning the Business (including any reason, the parties copies thereof or extracts therefrom); (ii) an officer of Buyer shall promptly return or destroy certify to Seller that such destruction has occurred; and (iii) Buyer shall and shall cause its representatives to keep confidential and not use any such information in accordance with the Confidentiality Agreementor documents unless required to disclose such information or documents pursuant to judicial order, regulation or Law.
(b) Subject Buyer acknowledges that, in the course of its investigation of the Business, Buyer and its representatives have and will become aware of confidential information and documents of Seller, and that its use of such confidential information and documents, or communication of such information to third parties, could be detrimental to Seller. Buyer covenants that from and after the Closing, all information and documents concerning Seller reviewed by Buyer or its representatives in connection with this Agreement or the transactions contemplated hereby shall be maintained in confidence and shall not be disclosed or used by Buyer or its representatives without Seller's prior written consent, unless Buyer can demonstrate that such information is (i) otherwise publicly available, (ii) required to be disclosed pursuant to judicial order, regulation or Law, or (iii) required to be disclosed by the rules of a securities exchange on which Buyer may from time to time be listed. In the event that Buyer or any of its representatives becomes legally compelled to disclose any such information or documents referred to in this paragraph, Buyer shall, to the extent reasonably practicable, provide Seller with prompt written notice before such disclosure, sufficient to enable Seller either to seek a protective order, at its expense, or another appropriate remedy preventing or prohibiting such disclosure or to waive compliance with the provisions of this Section 5.1(b), or both. If, in the absence of a protective order or the receipt of a waiver hereunder, Buyer or any of its Affiliates is nonetheless, in the opinion of counsel to Buyer, compelled to disclose such confidential information, Buyer, after notice to Seller (unless such notice would violate or conflict with applicable Law Law), may disclose such confidential information to the extent so required, in the opinion of counsel, by Law. If requested by Seller, Buyer shall, upon disclosure of such confidential information (x) exercise reasonable best efforts, at Seller's expense, to obtain reliable assurances that the confidential information so disclosed will be accorded confidential treatment or (y) cooperate with any attempt by Seller to obtain reliable assurances that the confidential information so disclosed will be accorded confidential treatment. Buyer agrees, and shall cause its Affiliates, to protect Seller's confidential information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized disclosure of such as Buyer uses to protect its own confidential information of a like nature. None of Buyer, any of its Affiliates or their respective personnel (including each of its respective Affiliates' accountants, legal advisers and other professional advisers) shall be liable for the disclosure of confidential information as expressly permitted by this subsection (b).
(c) In addition to the foregoing, following the Closing and subject to any applicable Law, Buyer shall reasonably cooperate with and assist Seller or Seller's designee in Seller's defense of, or response to, any suit, claim, action, proceeding or investigation (i) in the event that Seller would be required to indemnify Buyer pursuant to Article 8 from and against any Losses suffered by Buyer in connection with such suit, claim, action, proceeding or investigation and (ii) that relates to a matter of which any employee of Buyer has knowledge as a result of such employee's employment with the Business. Such obligation to cooperate shall include causing such employees to be available to Seller during regular business hours and upon reasonable advance notice, the Company shall afford Parent and its Representatives reasonable access, during normal business hours during the period prior to the Effective Time, to its properties, books, contracts and records and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants and other professionals), and during such period, the Company shall furnish promptly to Parent such information concerning its business, properties and personnel as Parent may reasonably request; provided, however, that the Company may restrict the foregoing access but only to the extent that such action does not unduly interfere with the business of Buyer; provided, that (iA) Seller shall reimburse Buyer promptly for all reasonable and necessary out-of-pocket costs and expenses incurred by Buyer in connection with any applicable Law requires such party request and (B) Buyer shall not be required to permit any of the foregoing activities that would (x) result in the disclosure of any trade secrets of third parties, or any trade secrets of Buyer or of any of its Subsidiaries Affiliates unrelated to restrict the Transactions, (y) violate any obligations of Buyer or prohibit access any of its Affiliates to any such properties third party with respect to confidentiality or information (z) reasonably be expected, in the opinion of counsel, to Parent, (ii) such access would give rise to a material risk have the effect of waiving causing the waiver of any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information or (iii) such access would be in breach of any confidentiality obligation, commitment or provision by which the Company is bound or affected as of the date hereof, which confidentiality obligation, commitment or provision shall be disclosed to Parent, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to the exchange of such information, and such information shall not be exchanged to the extent such counsel to the Company reasonably advises against such exchange. In addition, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall be subject to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases and shall not include the right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessment.
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Confidentiality; Access. (a) The parties acknowledge that Parties hereby agree to treat the Parent (or one contents of Parent’s Affiliates) and TripleTree (on behalf of the Company) have previously executed that certain confidentiality agreement, dated June 17, 2015 (as amended, the “Confidentiality Agreement”). Except as may be required by applicable Law or the rules of any applicable national securities exchange or pursuant to the terms and provisions of the Confidentiality this Agreement, all nonpublic information obtained in connection with this Agreement and the parties will hold any information which is non-public in confidence Transactions as confidential in accordance with the terms of that certain Confidentiality Agreement between Cobham and Buyer, dated as of September 20, 2017 (the “Confidentiality Agreement”) which shall continue in full force and effect until the Closing Date, at which time the Confidentiality Agreement andAgreement, in and the event obligations of the Parties under this Section 5.4, shall terminate and be of no further force or effect. If this Agreement is terminated is, for any reason, terminated prior to the parties Closing, the Confidentiality Agreement shall promptly return or destroy such information continue in full force and effect in accordance with its terms. The foregoing and the Confidentiality AgreementAgreement shall not prevent a Party from making any disclosure (x) as may be required by Law or the rules and regulations of any stock exchange (including, for the avoidance of doubt, the London Stock Exchange and NASDAQ) upon which the securities of the Sellers or Buyer, as applicable, or any of their respective Affiliates, are listed, and in the event such disclosure is required, a Party may include such information as it customarily discloses with respect to similar transactions; and (y) as may be necessary or desirable in connection with any Governmental Filings. For the avoidance of doubt, the non-solicitation provision set forth in the Confidentiality Agreement shall not prevent Buyer from having discussions prior to Closing with respect to the Entity Employees solely regarding their roles with Buyer and the Conveyed Entities after the Closing.
(b) Subject to applicable Law the Confidentiality Agreement and Section 5.4(a), from the date hereof until the Closing, or such earlier date on which this Agreement may be terminated in accordance with its terms, upon reasonable notice, the Company Sellers shall, and shall cause their respective Affiliates (including the Conveyed Entities) and each of its and their respective representatives to: (i) afford Parent Buyer and its Representatives authorized representatives reasonable access, during normal business hours during the period prior access to the Effective Timeofficers, to its personnel, properties, booksContracts, contracts and records Business Records of the Conveyed Entities and appropriate individuals as Parent may reasonably request (including employees, attorneys, accountants, consultants ii) furnish to the authorized representatives of Buyer such additional financial and operating data and other professionals), information regarding the Conveyed Entities and during such period, the Company shall furnish promptly their respective businesses and operations as Buyer and its authorized representatives may from time to Parent such information concerning its business, properties and personnel as Parent may time reasonably request; provided, however, that and such access shall be during normal business hours and in such a manner as not to interfere unreasonably with the Company may restrict the foregoing normal operations of Conveyed Entities. All requests by Buyer for access pursuant to this Section 5.4(b) shall be submitted or directed to the extent that (iindividuals specified in Section 5.4(b) any applicable Law requires such party or its Subsidiaries to restrict or prohibit access to any such properties or information to Parent, (ii) such access 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 or (iii) such access would be in breach of any confidentiality obligation, commitment or provision by which the Company is bound or affected as of the date hereofSeller Disclosure Schedule or, which confidentiality obligationin each case, commitment or provision shall be disclosed such other individuals as the Sellers may designate in writing from time to Parenttime. For the avoidance of doubt, provided that disclosure of such obligation, commitment or provision would not itself be the breach of an obligation or commitment to a third party. With respect to the furnishing by the Company of competitively sensitive information, outside antitrust counsel will be consulted prior to the exchange of such informationClosing, and such information Buyer shall not be exchanged to the extent such counsel to the Company reasonably advises against such exchange. In addition, any information obtained from the Company pursuant to the access contemplated by this Section 5.1(b) shall be subject to the Confidentiality Agreement. Any access to any of the Company’s facilities shall be subject to the Company’s reasonable security measures and insurance requirements. Notwithstanding the foregoing, any access to any Company offices shall be subject to the Company’s reasonable security measures and insurance requirements and the requirements of the applicable Leases and shall not include the have no right to perform any invasive testing or soil, air and groundwater sampling, including, any Phase II environmental assessmentsubsurface investigations of the Real Property.
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