Retention of and Access to Records; Confidentiality. (a) From the Closing Date until the seventh (7th) anniversary thereof, the Seller Parties shall (and shall cause their respective Subsidiaries to) retain those Books and Records relating to the Combined Business other than the Transferred Books and Records (which shall be delivered to the Purchaser pursuant to Section 2.6(a)(iv)) and shall provide the Purchaser, the Transferred Companies, their respective Subsidiaries and their Representatives reasonable access to inspect and copy such Books and Records relating to the Combined Business in connection with matters relating to or affected by operations of the Combined Business prior to the Closing Date (other than Books and Records relating to Taxes, access to which is governed exclusively by Section 10.3(c)), during normal business hours and on reasonable notice, for any reasonable business purpose, including to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order. (b) From and after the date hereof until the fourth (4th) anniversary of the Closing, without limitation of the Seller Parties’ obligations under Section 7.13(d), each of the Seller Parties shall (and shall cause their respective Subsidiaries to) treat as confidential and shall safeguard any and all information, knowledge and data relating to (i) the Combined Business or (ii) the Acquired Commodities Business Portfolio (as defined in Exhibit A) and including for the avoidance of doubt information obtained pursuant to Section 7.6(g), except in each case to the extent that it relates to the Excluded Business (it being understood that confirmations and related data in respect of the Assigned Trading Agreements and the Trading Agreements to which a Transferred Company is a party shall not be deemed to relate to the Excluded Business) (the “Combined Business Confidential Information”), in each case, in their respective possession by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as such Seller Party used with respect thereto prior to the date hereof. The Parties agree that any Seller Party may only disclose such information (A) to the extent counsel to such Seller Party advises that disclosure is required to comply with Legal Requirements (provided that such Seller Party shall provide prior written notice to the Purchaser of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that such Seller Party shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall any Seller Party use, or permit any other Person to use, the Combined Business Confidential Information for any purposes other than as expressly contemplated under this Agreement or any Related Agreement. (c) From and after the date hereof until the fourth (4th) anniversary of the Closing, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies to) treat as confidential and shall safeguard any and all information, knowledge and data relating to the businesses of the Seller Parties and their respective Affiliates that is not Combined Business Confidential Information (the “Seller Confidential Information”), in each case, that has become known or becomes known to the Purchaser as a result of the transactions contemplated by this Agreement by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as the Purchaser uses with respect to its own information, knowledge and data. The Parties agree that the Purchaser may disclose such information (A) to the extent counsel to the Purchaser advises that disclosure is required to comply with Legal Requirements (provided that the Purchaser shall provide prior written notice to the Seller Parties of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that the Purchaser shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall Purchaser use, or permit any other Person to use, the Seller Confidential Information for any purpose other than as expressly contemplated under this Agreement or any Related Agreement. (d) The Parties acknowledge that the confidentiality obligations set forth in this Section 7.6 shall not extend to information, knowledge and data that (i) is or becomes publicly available through no act or omission of a Party owing a confidentiality obligation imposed by this Section 7.6 in respect of such information, knowledge and data (a “Receiving Party”), (ii) is or becomes available to a Receiving Party on a non-confidential basis from a source other than the Party to which such information, knowledge and data relates; provided that the source of such information, knowledge and data was not known to the Receiving Party to be bound by confidentiality obligations to the Party to which such information, knowledge and data relates, or (iii) the Receiving Party can establish that it independently developed such information, knowledge and data without reference to information, knowledge and data provided to such Receiving Party in connection with the transactions contemplated hereby. (e) After the seventh (7th) anniversary of the Closing Date (or such later date as may be required under Legal Requirements applicable to the Purchaser, the Partnership or any of their Subsidiaries), the Seller Parties or their respective Subsidiaries may elect to destroy any Books and Records described in Section 7.6(a), upon thirty days’ prior written notice of such determination being given to the Purchaser; provided, that at the request (made prior to the end of such thirty-day period) and expense of the Purchaser, the Seller Parties or their respective Subsidiaries (as applicable) shall deliver such Books and Records to the Purchaser in lieu of destroying them. The Purchaser, the Transferred Companies and any of their respective Subsidiaries shall, prior to the seventh anniversary of the Closing Date or thereafter during the effective term of the requirements under this Section 7.6(e), advise the Seller Parties as to the Legal Requirements referred to in the immediately preceding sentence. Notwithstanding anything in this Section 7.6(e), the Seller Parties shall only be required to deliver to the Purchaser the portions of such Books and Records that relate to the Combined Business or the Transferred Companies and may redact any statements or other information on the portions of such Books and Records that do not relate to the Combined Business or the Transferred Companies. (f) The Parties acknowledge that the Non-Disclosure Agreement remains in full force and effect; provided that after the Closing Date, (i) Purchaser’s confidentiality obligations thereunder shall terminate and be of no further force or effect only as to the Combined Business Confidential Information, and (ii) the restrictions on solicitation and hiring thereunder shall terminate and be of no further force or effect only as to the Combined Business Employees. (g) From the Closing Date until the seventh (7th) anniversary thereof, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parties and their respective Subsidiaries and their Representatives reasonable access to inspect and copy the Transferred Books and Records (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) in respect of matters relating to or affected by operations of the Combined Business prior to the Closing Date, for any reasonable business purpose, or to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order. From the Closing Date until such time as all obligations of the Seller Parties and their Affiliates under the Seller Financial Assurances have been fully and unconditionally released or otherwise terminated with no possibility of further liabilities on the part of the Seller Parties or their Affiliates, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parents and their Representatives reasonable access to such information, including the relevant portions of the underlying Contracts (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) (i) as is reasonably necessary for any Seller Parent to determine its potential exposure under its outstanding Seller Financial Assurances or whether any Third Party Claim in respect of a Seller Financial Assurance is proper and to enforce, (ii) to permit its Affiliate to enforce any rights it may have under, or defend any claim under, any Seller Financial Assurance, (iii) for regulatory purposes or (iv) to enable them to prepare financial statements. Any such access shall be during normal business hours and on reasonable notice, and shall only apply to the extent that furnishing any such information or data would not violate any Legal Requirement or Order (except that, with respect to the immediately preceding sentence, the Parties shall use commercially reasonable efforts to remove any such restriction or otherwise share such information in a manner that does not violate the relevant Legal Requirement or Order). (h) In the event that the Seller Parties discover or are aware of any computer, word processor or data storage device that is part of the Excluded Assets contains any Combined Business Confidential Information, subject to applicable Legal Requirements, the Seller Parties will use commercially reasonable efforts to expunge or delete such information except to the extent and only for so long as, such information (i) is being used by such Seller Party in a manner expressly contemplated by the Related Agreements or (ii) is being retained by the legal department provided such Seller Party maintains the confidentiality of such information in accordance with Section 7.6(b) for so long as such information is retained. (i) The parties acknowledge that the Commodities Trading and Services Agreements shall set forth specific provisions regarding access to records, confidentiality, use restrictions, and similar matters in relation to the provision and receipt of Portfolio Services (as defined in Exhibit A) (including Trading Activities) in relation to the operation of the Acquired Commodities Business Portfolio after the Closing (the “Post-Closing Business”). Any provision of the Commodities Trading and Services Agreements which expressly addresses matters described in this Section 7.6 in relation to the Post-Closing Business shall, as between the parties to the Commodities Trading and Services Agreements and in relation to such Post-Closing Business, supersede the provisions of this Section 7.6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Royal Bank of Scotland Group PLC)
Retention of and Access to Records; Confidentiality. (a) From the Closing Date until the seventh (7th) anniversary thereof, the Seller Parties shall (and shall cause their respective Subsidiaries to) retain those Books and Records relating to the Combined Business other than the Transferred Books and Records (which shall be delivered to the Purchaser pursuant to Section 2.6(a)(iv)) and shall provide the Purchaser, the Transferred Companies, their respective Subsidiaries and their Representatives reasonable access to inspect and copy such Books and Records relating to the Combined Business in connection with matters relating to or affected by operations of the Combined Business prior to the Closing Date (other than Books and Records relating to Taxes, access to which is governed exclusively by Section 10.3(c)), during normal business hours and on reasonable notice, for any reasonable business purpose, including to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order.
(b) From and after the date hereof until the fourth (4th) anniversary of the Closing, without limitation of the Seller Parties’ obligations under Section 7.13(d), each of the Seller Parties shall (and shall cause their respective Subsidiaries to) treat as confidential and shall safeguard any and all information, knowledge and data relating to (i) the Combined Business or (ii) the Acquired Commodities Business Portfolio (as defined in Exhibit A) and including for the avoidance of doubt information obtained pursuant to Section 7.6(g), except in each case to the extent that it relates to the Excluded Business (it being understood that confirmations and related data in respect of the Assigned Trading Agreements and the Trading Agreements to which a Transferred Company is a party shall not be deemed to relate to the Excluded Business) (the “Combined Business Confidential Information”), in each case, in their respective possession by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as such Seller Party used with respect thereto prior to the date hereof. The Parties agree that any Seller Party may only disclose such information (A) to the extent counsel to such Seller Party advises that disclosure is required to comply with Legal Requirements (provided that such Seller Party shall provide prior written notice to the Purchaser of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that such Seller Party shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall any Seller Party use, or permit any other Person to use, the Combined Business Confidential Information for any purposes other than as expressly contemplated under this Agreement or any Related Agreement.
(c) From and after the date hereof until the fourth (4th) anniversary of the Closing, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies to) treat as confidential and shall safeguard any and all information, knowledge and data relating to the businesses of the Seller Parties and their respective Affiliates that is not Combined Business Confidential Information (the “Seller Confidential Information”), in each case, that has become known or becomes known to the Purchaser as a result of the transactions contemplated by this Agreement by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as the Purchaser uses with respect to its own information, knowledge and data. The Parties agree that the Purchaser may disclose such information (A) to the extent counsel to the Purchaser advises that disclosure is required to comply with Legal Requirements (provided that the Purchaser shall provide prior written notice to the Seller Parties of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that the Purchaser shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall Purchaser use, or permit any other Person to use, the Seller Confidential Information for any purpose other than as expressly contemplated under this Agreement or any Related Agreement.
(d) The Parties acknowledge that the confidentiality obligations set forth in this Section 7.6 shall not extend to information, knowledge and data that (i) is or becomes publicly available through no act or omission of a Party owing a confidentiality obligation imposed by this Section 7.6 in respect of such information, knowledge and data (a “Receiving Party”), (ii) is or becomes available to a Receiving Party on a non-confidential basis from a source other than the Party to which such information, knowledge and data relates; provided that the source of such information, knowledge and data was not known to the Receiving Party to be bound by confidentiality obligations to the Party to which such information, knowledge and data relates, or (iii) the Receiving Party can establish that it independently developed such information, knowledge and data without reference to information, knowledge and data provided to such Receiving Party in connection with the transactions contemplated hereby.
(e) After the seventh (7th) anniversary of the Closing Date (or such later date as may be required under Legal Requirements applicable to the Purchaser, the Partnership or any of their Subsidiaries), the Seller Parties or their respective Subsidiaries may elect to destroy any Books and Records described in Section 7.6(a), upon thirty days’ prior written notice of such determination being given to the Purchaser; provided, that at the request (made prior to the end of such thirty-day period) and expense of the Purchaser, the Seller Parties or their respective Subsidiaries (as applicable) shall deliver such Books and Records to the Purchaser in lieu of destroying them. The Purchaser, the Transferred Companies and any of their respective Subsidiaries shall, prior to the seventh anniversary of the Closing Date or thereafter during the effective term of the requirements under this Section 7.6(e), advise the Seller Parties as to the Legal Requirements referred to in the immediately preceding sentence. Notwithstanding anything in this Section 7.6(e), the Seller Parties shall only be required to deliver to the Purchaser the portions of such Books and Records that relate to the Combined Business or the Transferred Companies and may redact any statements or other information on the portions of such Books and Records that do not relate to the Combined Business or the Transferred Companies.
(f) The Parties acknowledge that the Non-Disclosure Agreement remains in full force and effect; provided that after the Closing Date, (i) Purchaser’s confidentiality obligations thereunder shall terminate and be of no further force or effect only as to the Combined Business Confidential Information, and (ii) the restrictions on solicitation and hiring thereunder shall terminate and be of no further force or effect only as to the Combined Business Employees.
(g) From the Closing Date until the seventh (7th) anniversary thereof, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parties and their respective Subsidiaries and their Representatives reasonable access to inspect and copy the Transferred Books and Records (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) in respect of matters relating to or affected by operations of the Combined Business prior to the Closing Date, for any reasonable business purpose, or to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order. From the Closing Date until such time as all obligations of the Seller Parties and their Affiliates under the Seller Financial Assurances have been fully and unconditionally released or otherwise terminated with no possibility of further liabilities on the part of the Seller Parties or their Affiliates, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parents and their Representatives reasonable access to such information, including the relevant portions of the underlying Contracts (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) (i) as is reasonably necessary for any Seller Parent to determine its potential exposure under its outstanding Seller Financial Assurances or whether any Third Party Claim in respect of a Seller Financial Assurance is proper and to enforce, (ii) to permit its Affiliate to enforce any rights it may have under, or defend any claim under, any Seller Financial Assurance, (iii) for regulatory purposes or (iv) to enable them to prepare financial statements. Any such access shall be during normal business hours and on reasonable notice, and shall only apply to the extent that furnishing any such information or data would not violate any Legal Requirement or Order (except that, with respect to the immediately preceding sentence, the Parties shall use commercially reasonable efforts to remove any such restriction or otherwise share such information in a manner that does not violate the relevant Legal Requirement or Order).
(h) In the event that the Seller Parties discover or are aware of any computer, word processor or data storage device that is part of the Excluded Assets contains any Combined Business Confidential Information, subject to applicable Legal Requirements, the Seller Parties will use commercially reasonable efforts to expunge or delete such information except to the extent and only for so long as, such information (i) is being used by such Seller Party in a manner expressly contemplated by the Related Agreements or (ii) is being retained by the legal department provided such Seller Party maintains the confidentiality of such information in accordance with Section 7.6(b) for so long as such information is retained.
(i) The parties acknowledge that the Commodities Trading and Services Agreements shall set forth specific provisions regarding access to records, confidentiality, use restrictions, and similar matters in relation to the provision and receipt of Portfolio Services (as defined in Exhibit AA ) (including Trading Activities) in relation to the operation of the Acquired Commodities Business Portfolio after the Closing (the ““ Post-Closing BusinessBusiness ”). Any provision of the Commodities Trading and Services Agreements which expressly addresses matters described in this Section 7.6 in relation to the Post-Closing Business shall, as between the parties to the Commodities Trading and Services Agreements and in relation to such Post-Closing Business, supersede the provisions of this Section 7.6.7.6 ..
Appears in 1 contract
Retention of and Access to Records; Confidentiality. (a) From the Closing Date until the seventh (7th) anniversary thereof, the Seller Parties shall (and shall cause their respective Subsidiaries to) retain those Books and Records relating to the Combined Business other than the Transferred Books and Records (which shall be delivered to the Purchaser pursuant to Section 2.6(a)(iv)) and shall provide the Purchaser, the Transferred Companies, their respective Subsidiaries and their Representatives reasonable access to inspect and copy such Books and Records relating to the Combined Business in connection with matters relating to or affected by operations of the Combined Business prior to the Closing Date (other than Books and Records relating to Taxes, access to which is governed exclusively by Section 10.3(c)), during normal business hours and on reasonable notice, for any reasonable business purpose, including to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order.
(b) From As from and after the date hereof until the fourth (4th) anniversary of the Closing, without limitation of the Seller Parties’ obligations under Section 7.13(d), each of the Seller Parties shall (and shall cause their respective Subsidiaries to) treat as confidential and shall safeguard any and all information, knowledge and data relating to (i) the Combined Business or (ii) the Acquired Commodities Business Portfolio (as defined in Exhibit A) and including for the avoidance of doubt information obtained pursuant to Section 7.6(g), except in each case to the extent that it relates related to the Excluded Company or the Business (it being understood that confirmations and related data in respect other than historical financial reporting information presented on a consolidated basis with other historical financial reporting information of the Assigned Trading Agreements and the Trading Agreements to which a Transferred Company is a party shall not be deemed to relate to the Excluded BusinessSeller Parents) (the “Combined Business Confidential Information”), in each case, in their respective possession by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as such Seller Party used with respect thereto prior to the date hereof. The Parties agree that any Seller Party may only disclose such information (A) to the extent counsel to such Seller Party advises that disclosure is required to comply with Legal Requirements (provided that such Seller Party shall provide prior written notice to the Purchaser of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek other than with respect to securities laws or stock exchange rules to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that such Seller Party shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall any Seller Party use, or permit any other Person to use, the Combined Business Confidential Information for any purposes purpose other than as expressly contemplated under this Agreement or any Related Agreement.
(cb) From and after the date hereof until the fourth (4th) anniversary of the Closing, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies Company, to) treat as confidential and shall safeguard any and all information, knowledge and data relating to the businesses of the Seller Parties and their respective Affiliates that is not Combined Business Confidential Information (the “Seller Confidential Information”), in each case, that has become known or becomes known to the Purchaser as a result of the transactions contemplated by this Agreement by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as the Purchaser uses with respect to its own information, knowledge and data. The Parties agree that the Purchaser may disclose such information (A) to the extent counsel to the Purchaser advises that disclosure is required to comply with Legal Requirements (provided that the Purchaser shall provide prior written notice to the Seller Parties of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek (other than with respect to securities laws or stock exchange rules) to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that the Purchaser shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall Purchaser use, or permit any other Person to use, the Seller Confidential Information for any purpose other than as expressly contemplated under this Agreement or any Related Agreement.
(dc) The Parties acknowledge that the confidentiality obligations set forth in this Section 7.6 7.5 shall not extend to information, knowledge and data that (i) is or becomes publicly available through no act or omission of a Party owing a confidentiality obligation imposed by this Section 7.6 7.5 in respect of such information, knowledge and data (a “Receiving Party”), (ii) is or becomes available to a Receiving Party on a non-confidential basis from a source other than the Party to which such information, knowledge and data relates; provided that the source of such information, knowledge and data was not known to the Receiving Party to be bound by confidentiality obligations to the Party to which such information, knowledge and data relates, or (iii) the Receiving Party can establish that it independently developed such information, knowledge and data without reference to information, knowledge and data provided to such Receiving Party in connection with the transactions contemplated hereby.
(e) After the seventh (7th) anniversary of the Closing Date (or such later date as may be required under Legal Requirements applicable to the Purchaser, the Partnership or any of their Subsidiaries), the Seller Parties or their respective Subsidiaries may elect to destroy any Books and Records described in Section 7.6(a), upon thirty days’ prior written notice of such determination being given to the Purchaser; provided, that at the request (made prior to the end of such thirty-day period) and expense of the Purchaser, the Seller Parties or their respective Subsidiaries (as applicable) shall deliver such Books and Records to the Purchaser in lieu of destroying them. The Purchaser, the Transferred Companies and any of their respective Subsidiaries shall, prior to the seventh anniversary of the Closing Date or thereafter during the effective term of the requirements under this Section 7.6(e), advise the Seller Parties as to the Legal Requirements referred to in the immediately preceding sentence. Notwithstanding anything in this Section 7.6(e), the Seller Parties shall only be required to deliver to the Purchaser the portions of such Books and Records that relate to the Combined Business or the Transferred Companies and may redact any statements or other information on the portions of such Books and Records that do not relate to the Combined Business or the Transferred Companies.
(fd) The Parties acknowledge that the Non-Disclosure Agreement remains in full force and effecteffect and, from and after the date hereof, the Purchaser agrees to comply with the Non-Disclosure Agreement as if it were a party thereto as the addressee thereof; provided that after the Closing Date, (i) Purchaser’s confidentiality obligations thereunder shall terminate and be of no further force or effect only as to the Combined Business Confidential Information, and (ii) the restrictions on solicitation and hiring thereunder shall terminate and be of no further force or effect only as to the Combined Business Employees.
(ge) From the Closing Date until the seventh (7th) anniversary thereof, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred CompaniesCompany, to) provide the Seller Parties and their respective Subsidiaries and their Representatives reasonable access to inspect and copy the Transferred Books and Records (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) Business Confidential Information in respect of matters relating to or affected by operations of the Combined Business prior to the Closing Date, during normal business hours and on reasonable notice, for any reasonable business purpose, or to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order. From the Closing Date until such time as all obligations of the Seller Parties and their Affiliates under the Seller Financial Assurances have been fully and unconditionally released or otherwise terminated with no possibility of further liabilities on the part of the Seller Parties or their Affiliates, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred CompaniesCompany, to) provide the Seller Parents and their Representatives reasonable access to such information, including the relevant portions of the underlying Contracts (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) 10.3): (i) as is reasonably necessary for any Seller Parent (x) to determine its and its Affiliate’s potential exposure under its outstanding Seller Financial Assurances or and whether any Third Party Claim in respect of a Seller Financial Assurance is proper and (y) to enforcemonitor and enforce the provisions of Section 7.18 and the applicable Financial Assurances Reimbursement and Indemnity Agreement and the applicable Collateral Security Agreement, (ii) to permit such Seller Parent or its Affiliate to enforce any rights it may have under, or defend any claim under, any Seller Financial Assurance, (iii) for regulatory purposes or (iv) to enable them to prepare financial statements. Any such access shall be during normal business hours and on reasonable noticenotice and subject to Legal Requirements.
(f) From the Closing Date until the seventh (7th) anniversary thereof, the Seller Parties shall (and shall cause their respective Subsidiaries to) retain any material books and records relating to the Business not delivered to the Purchaser at the Closing, and shall only apply provide the Purchaser, the Company, their respective Subsidiaries and their Representatives reasonable access to inspect and copy such books and records in connection with matters relating to or affected by operations of the Business prior to the Closing Date (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3), during normal business hours and on reasonable notice, for any reasonable business purpose, including to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information books or data records would not violate any Legal Requirement or Order (except that, with respect to the immediately preceding sentence, the Parties shall use commercially reasonable efforts to remove any such restriction or otherwise share such information in a manner that does not violate the relevant Legal Requirement or Order).
(h) In the event that the Seller Parties discover or are aware of any computer, word processor or data storage device that is part of the Excluded Assets contains any Combined Business Confidential Information, subject to applicable Legal Requirements, the Seller Parties will use commercially reasonable efforts to expunge or delete such information except to the extent and only for so long as, such information (i) is being used by such Seller Party in a manner expressly contemplated by the Related Agreements or (ii) is being retained by the legal department provided such Seller Party maintains the confidentiality of such information in accordance with Section 7.6(b) for so long as such information is retained.
(i) The parties acknowledge that the Commodities Trading and Services Agreements shall set forth specific provisions regarding access to records, confidentiality, use restrictions, and similar matters in relation to the provision and receipt of Portfolio Services (as defined in Exhibit A) (including Trading Activities) in relation to the operation of the Acquired Commodities Business Portfolio after the Closing (the “Post-Closing Business”). Any provision of the Commodities Trading and Services Agreements which expressly addresses matters described in this Section 7.6 in relation to the Post-Closing Business shall, as between the parties to the Commodities Trading and Services Agreements and in relation to such Post-Closing Business, supersede the provisions of this Section 7.6.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Royal Bank of Scotland Group PLC)
Retention of and Access to Records; Confidentiality. (a) From and after the Closing Date until the seventh expiration of three (7th3) anniversary thereofyears after the Closing Date, the Seller Parties shall (upon reasonable request from Buyer make available and shall cause their respective Subsidiaries to) retain those Books permit Buyer and Records relating to the Combined Business other than the Transferred Books its Representatives and Records (which shall be delivered to the Purchaser pursuant to Section 2.6(a)(iv)) and shall provide the Purchaser, the Transferred Companies, their respective Subsidiaries and their Representatives reasonable access agents to inspect and copy such Books any books and Records relating records which relate to the Combined Business in connection with matters relating to or affected as previously conducted by operations Seller; provided, however, that (i) all such inspection, copying, and assistance shall be at Seller’s place of the Combined Business prior to the Closing Date (other than Books business at reasonable times and Records relating to Taxes, access to which is governed exclusively by Section 10.3(c)), during normal business hours and on upon reasonable notice, for any reasonable business purposeand conducted in a matter as to not interfere with Seller’s business, including to enable them to prepare financial statements or tax returns(ii) all such inspection, respond to tax audits or copying, and assistance shall be at the sole cost and expense of Buyer, and (iii) Buyer and Seller shall treat all such records and information and the contents thereof as they may otherwise reasonably requestconfidential in accordance with Sections 5.4 (c), except to the extent that furnishing any such information or data would violate any Legal Requirement or Order(d) and (e) hereof.
(b) From and after the date hereof Closing until the fourth expiration of three (4th3) anniversary of years after the ClosingClosing Date, without limitation of Buyer shall upon reasonable request from Seller make available and permit Seller and its Representatives and agents to inspect and copy any books and records which relate to the Seller Parties’ obligations under Section 7.13(d)Business as previously conducted by Seller; provided, each of the Seller Parties shall (and shall cause their respective Subsidiaries to) treat as confidential and shall safeguard any and all informationhowever, knowledge and data relating to that (i) the Combined Business or all such inspection, copying, and assistance shall be at Buyer’s place of business at reasonable times and upon reasonable notice, and conducted in a matter as to not interfere with Buyer’s business, (ii) all such inspection, copying, and assistance shall be at the Acquired Commodities Business Portfolio (as defined in Exhibit A) sole cost and including for the avoidance expense of doubt information obtained pursuant to Section 7.6(g), except in each case to the extent that it relates to the Excluded Business (it being understood that confirmations and related data in respect of the Assigned Trading Agreements and the Trading Agreements to which a Transferred Company is a party shall not be deemed to relate to the Excluded Business) (the “Combined Business Confidential Information”), in each case, in their respective possession by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as such Seller Party used with respect thereto prior to the date hereof. The Parties agree that any Seller Party may only disclose such information (A) to the extent counsel to such Seller Party advises that disclosure is required to comply with Legal Requirements (provided that such Seller Party shall provide prior written notice to the Purchaser of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements)Seller, and (Biii) to its directors, officers, employees, agents Buyer and professional advisers who reasonably need to know Seller shall treat all such records and information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that such Seller Party shall instruct any such director, officer, employee, agent or professional to keep such information and the contents thereof as confidential in accordance with this AgreementSections 5.4 (c). In no event shall any Seller Party use, or permit any other Person to use, the Combined Business Confidential Information for any purposes other than as expressly contemplated under this Agreement or any Related Agreement(d) and (e) hereof.
(c) From and after the date hereof until the fourth (4th) anniversary of the Closing, the Purchaser Seller shall (and shall cause its Subsidiaries, including the Transferred Companies toi) treat as confidential all information included in the Intellectual Property Assets and shall safeguard any the Sale Books and Records, all other information which is proprietary or confidential to the Business, and all information, knowledge and data relating to information regarding the businesses of the Seller Parties and their respective Affiliates that is not Combined Business Confidential Information Contemplated Transactions (the “Seller Confidential Buyer’s Information”), in each case, that has become known or becomes known to the Purchaser as a result of the transactions contemplated by this Agreement by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as the Purchaser uses with respect to its own information, knowledge and data. The Parties agree that the Purchaser may disclose such information (A) to the extent counsel to the Purchaser advises that disclosure is required to comply with Legal Requirements (provided that the Purchaser shall provide prior written notice to the Seller Parties of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that the Purchaser shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall Purchaser use, or permit any other Person to use, the Seller Confidential Information for any purpose other than as expressly contemplated under this Agreement or any Related Agreement.
(d) The Parties acknowledge that the confidentiality obligations set forth in this Section 7.6 shall not extend to information, knowledge and data that (i) is or becomes publicly available through no act or omission of a Party owing a confidentiality obligation imposed by this Section 7.6 in respect of such information, knowledge and data (a “Receiving Party”), (ii) use the Buyer’s Information only as necessary for Seller to perform its obligations under this Agreement, Seller’s Closing Documents, and the Contemplated Transactions, and (iii) take appropriate precautions to prevent access to or use of the Buyer’s Information except as expressly contemplated under this Section 5.4; provided, however, that the Buyer’s Information shall not include information which is or becomes available to a Receiving Party on a non-confidential basis from a source other than the Party to which such information, knowledge and data relates; provided that the source publicly known through no fault of such information, knowledge and data was not known to the Receiving Party to be bound by confidentiality obligations to the Party to which such information, knowledge and data relates, Seller or (iii) the Receiving Party can establish that it independently developed such information, knowledge and data without reference to information, knowledge and data provided to such Receiving Party in connection with the transactions contemplated herebyany of its employees or Representatives.
(ed) After the seventh (7th) anniversary of the Closing Date (or such later date as may be required under Legal Requirements applicable to the Purchaser, the Partnership or any of their Subsidiaries), the Seller Parties or their respective Subsidiaries may elect to destroy any Books and Records described in Section 7.6(a), upon thirty days’ prior written notice of such determination being given to the Purchaser; provided, that at the request (made prior to the end of such thirty-day period) and expense of the Purchaser, the Seller Parties or their respective Subsidiaries (as applicable) Buyer shall deliver such Books and Records to the Purchaser in lieu of destroying them. The Purchaser, the Transferred Companies and any of their respective Subsidiaries shall, prior to the seventh anniversary of the Closing Date or thereafter during the effective term of the requirements under this Section 7.6(e), advise the Seller Parties as to the Legal Requirements referred to in the immediately preceding sentence. Notwithstanding anything in this Section 7.6(e), the Seller Parties shall only be required to deliver to the Purchaser the portions of such Books and Records that relate to the Combined Business or the Transferred Companies and may redact any statements or other information on the portions of such Books and Records that do not relate to the Combined Business or the Transferred Companies.
(f) The Parties acknowledge that the Non-Disclosure Agreement remains in full force and effect; provided that after the Closing Date, (i) Purchaser’s confidentiality obligations thereunder shall terminate and be of no further force treat as confidential all information which is proprietary or effect only as confidential to the Combined Business Confidential Information, and (ii) the restrictions on solicitation and hiring thereunder shall terminate and be of no further force or effect only as to the Combined Business Employees.
(g) From the Closing Date until the seventh (7th) anniversary thereof, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parties and their respective Subsidiaries and their Representatives reasonable access to inspect and copy the Transferred Books and Records (other than books and records relating to Taxes, access to which that is governed exclusively by Section 10.3(c)) in respect of matters relating to or affected by operations of the Combined Business prior to the Closing Date, for any reasonable business purpose, or to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order. From the Closing Date until such time as all obligations of the Seller Parties and their Affiliates under the Seller Financial Assurances have been fully and unconditionally released or otherwise terminated with no possibility of further liabilities on the not part of the Seller Parties or their Affiliates, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parents and their Representatives reasonable access to such information, including the relevant portions Business that Buyer may learn as a result of the underlying Contracts (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) (i) as is reasonably necessary for any Seller Parent to determine its potential exposure under its outstanding Seller Financial Assurances or whether any Third Party Claim in respect of a Seller Financial Assurance is proper and to enforce, (ii) to permit its Affiliate to enforce any rights it may have under, or defend any claim under, any Seller Financial Assurance, (iii) for regulatory purposes or (iv) to enable them to prepare financial statements. Any such access shall be during normal business hours and on reasonable noticeContemplated Transactions, and shall only apply all information regarding the Contemplated Transactions, including, but not limited to, Records not related to the extent that furnishing any such information Business which may be delivered to Buyer before or data would not violate any Legal Requirement or Order (except that, with respect to the immediately preceding sentence, the Parties shall use commercially reasonable efforts to remove any such restriction or otherwise share such information in a manner that does not violate the relevant Legal Requirement or Order).
(h) In the event that the Seller Parties discover or are aware of any computer, word processor or data storage device that is part of the Excluded Assets contains any Combined Business Confidential Information, subject to applicable Legal Requirements, the Seller Parties will use commercially reasonable efforts to expunge or delete such information except to the extent and only for so long as, such information (i) is being used by such Seller Party in a manner expressly contemplated by the Related Agreements or (ii) is being retained by the legal department provided such Seller Party maintains the confidentiality of such information in accordance with Section 7.6(b) for so long as such information is retained.
(i) The parties acknowledge that the Commodities Trading and Services Agreements shall set forth specific provisions regarding access to records, confidentiality, use restrictions, and similar matters in relation to the provision and receipt of Portfolio Services (as defined in Exhibit A) (including Trading Activities) in relation to the operation of the Acquired Commodities Business Portfolio after the Closing (the “Post-Closing BusinessSeller’s Information”). Any provision , (ii) use the Seller’s Information only as necessary for Buyer to perform its obligations under this Agreement, Buyer’s Closing Documents, and the Contemplated Transactions, and (iii) take appropriate precautions to prevent access to or use of the Commodities Trading and Services Agreements which Seller’s Information except as expressly addresses matters described in contemplated under this Section 7.6 in relation 5.4; provided, however, that the Seller’s Information shall not include information which is or becomes publicly known through no fault of Buyer or any of its employees or Representatives. Buyer shall immediately return to Seller the portion of the Seller’s Information not related to the Post-Closing Business shallto the extent practicable.
(e) In the event that either Party (the “Disclosing Party”) is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Seller’s Information or the Buyer’s Information, as between the parties case may be (the “Information”), then the Disclosing Party shall first and promptly notify the other Party so that the other Party may seek a protective order or other appropriate remedy, which the other Party shall seek promptly thereafter if it elects to seek such protection. In the Commodities Trading event that such protective order or remedy is obtained, the Disclosing Party shall comply therewith and Services Agreements shall only disclose such Information which it is advised in writing by counsel is legally required to be disclosed. In the event that no such protective order or other remedy is obtained, the Disclosing Party shall furnish only that portion of the Information which it is advised in writing by counsel is legally required to be disclosed and in relation the Disclosing Party shall use all reasonable efforts to such Post-Closing Business, supersede obtain reliable assurance that the provisions of this Section 7.6Information will be subject to appropriate confidentiality protections.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mesa Laboratories Inc /Co)
Retention of and Access to Records; Confidentiality. (a) From and after the Closing Date until the seventh expiration of three (7th3) anniversary thereofyears after the Closing Date, the Seller Parties shall (upon reasonable request from Buyer make available and shall cause their respective Subsidiaries to) retain those Books permit Buyer and Records relating to the Combined Business other than the Transferred Books its Representatives and Records (which shall be delivered to the Purchaser pursuant to Section 2.6(a)(iv)) and shall provide the Purchaser, the Transferred Companies, their respective Subsidiaries and their Representatives reasonable access agents to inspect and copy such Books any books and Records relating records which relate to the Combined Business in connection with matters relating to or affected as previously conducted by operations Seller; provided, however, that (i) all such inspection, copying, and assistance shall be at Seller’s place of the Combined Business prior to the Closing Date (other than Books business at reasonable times and Records relating to Taxes, access to which is governed exclusively by Section 10.3(c)), during normal business hours and on upon reasonable notice, for any reasonable business purposeand conducted in a matter as to not interfere with Seller’s business, including to enable them to prepare financial statements or tax returns(ii) all such inspection, respond to tax audits or copying, and assistance shall be at the sole cost and expense of Buyer, and (iii) Buyer and Seller shall treat all such records and information and the contents thereof as they may otherwise reasonably requestconfidential in accordance with Sections 5.4 (c), except to the extent that furnishing any such information or data would violate any Legal Requirement or Order(d) and (e) hereof.
(b) From and after the date hereof Closing until the fourth expiration of three (4th3) anniversary of years after the ClosingClosing Date, without limitation of Buyer shall upon reasonable request from Seller make available and permit Seller and its Representatives and agents to inspect and copy any books and records which relate to the Seller Parties’ obligations under Section 7.13(d)Business as previously conducted by Seller; provided, each of the Seller Parties shall (and shall cause their respective Subsidiaries to) treat as confidential and shall safeguard any and all informationhowever, knowledge and data relating to that (i) the Combined Business or all such inspection, copying, and assistance shall be at Buyer’s place of business at reasonable times and upon reasonable notice, and conducted in a matter as to not interfere with Buyer’s business, (ii) all such inspection, copying, and assistance shall be at the Acquired Commodities Business Portfolio (as defined in Exhibit A) sole cost and including for the avoidance expense of doubt information obtained pursuant to Section 7.6(g), except in each case to the extent that it relates to the Excluded Business (it being understood that confirmations and related data in respect of the Assigned Trading Agreements and the Trading Agreements to which a Transferred Company is a party shall not be deemed to relate to the Excluded Business) (the “Combined Business Confidential Information”), in each case, in their respective possession by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as such Seller Party used with respect thereto prior to the date hereof. The Parties agree that any Seller Party may only disclose such information (A) to the extent counsel to such Seller Party advises that disclosure is required to comply with Legal Requirements (provided that such Seller Party shall provide prior written notice to the Purchaser of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements)Seller, and (Biii) to its directors, officers, employees, agents Buyer and professional advisers who reasonably need to know Seller shall treat all such records and information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that such Seller Party shall instruct any such director, officer, employee, agent or professional to keep such information and the contents thereof as confidential in accordance with this AgreementSections 5.4 (c). In no event shall any Seller Party use, or permit any other Person to use, the Combined Business Confidential Information for any purposes other than as expressly contemplated under this Agreement or any Related Agreement(d) and (e) hereof.
(c) From and after the date hereof until the fourth (4th) anniversary of the Closing, the Purchaser Seller shall (and shall cause its Subsidiaries, including the Transferred Companies toi) treat as confidential all information included in the Intellectual Property Assets and shall safeguard any the Sale Books and Records, all other information which is proprietary or confidential to the Business, and all information, knowledge and data relating to information regarding the businesses of the Seller Parties and their respective Affiliates that is not Combined Business Confidential Information Contemplated Transactions (the “Seller Confidential Buyer’s Information”), in each case, that has become known or becomes known to the Purchaser as a result of the transactions contemplated by this Agreement by using the same degree of care, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or disclosure of such information, knowledge and data as the Purchaser uses with respect to its own information, knowledge and data. The Parties agree that the Purchaser may disclose such information (A) to the extent counsel to the Purchaser advises that disclosure is required to comply with Legal Requirements (provided that the Purchaser shall provide prior written notice to the Seller Parties of such disclosure (unless prohibited by any Legal Requirement) as promptly as practical under the circumstances and shall seek to limit any such disclosure and to protect from public disclosure by way of protective order or otherwise, in each case, to the extent permitted by Legal Requirements), and (B) to its directors, officers, employees, agents and professional advisers who reasonably need to know such information for purposes of this Agreement or any Related Agreement or any other purposes expressly contemplated hereby or thereby (provided that the Purchaser shall instruct any such director, officer, employee, agent or professional to keep such information confidential in accordance with this Agreement). In no event shall Purchaser use, or permit any other Person to use, the Seller Confidential Information for any purpose other than as expressly contemplated under this Agreement or any Related Agreement.
(d) The Parties acknowledge that the confidentiality obligations set forth in this Section 7.6 shall not extend to information, knowledge and data that (i) is or becomes publicly available through no act or omission of a Party owing a confidentiality obligation imposed by this Section 7.6 in respect of such information, knowledge and data (a “Receiving Party”), (ii) use the Buyer’s Information only as necessary for Seller to perform its obligations under this Agreement, Seller’s Closing Documents, and the Contemplated Transactions, and (iii) take appropriate precautions to prevent access to or use of the Buyer’s Information except as expressly contemplated under this Section 5.4; provided, however, that the Buyer’s Information shall not include information which is or becomes available to a Receiving Party on a non-confidential basis from a source other than the Party to which such information, knowledge and data relates; provided that the source publicly known through no fault of such information, knowledge and data was not known to the Receiving Party to be bound by confidentiality obligations to the Party to which such information, knowledge and data relates, Seller or (iii) the Receiving Party can establish that it independently developed such information, knowledge and data without reference to information, knowledge and data provided to such Receiving Party in connection with the transactions contemplated herebyany of its employees or Representatives.
(ed) After the seventh (7th) anniversary of the Closing Date (or such later date as may be required under Legal Requirements applicable to the Purchaser, the Partnership or any of their Subsidiaries), the Seller Parties or their respective Subsidiaries may elect to destroy any Books and Records described in Section 7.6(a), upon thirty days’ prior written notice of such determination being given to the Purchaser; provided, that at the request (made prior to the end of such thirty-day period) and expense of the Purchaser, the Seller Parties or their respective Subsidiaries (as applicable) Buyer shall deliver such Books and Records to the Purchaser in lieu of destroying them. The Purchaser, the Transferred Companies and any of their respective Subsidiaries shall, prior to the seventh anniversary of the Closing Date or thereafter during the effective term of the requirements under this Section 7.6(e), advise the Seller Parties as to the Legal Requirements referred to in the immediately preceding sentence. Notwithstanding anything in this Section 7.6(e), the Seller Parties shall only be required to deliver to the Purchaser the portions of such Books and Records that relate to the Combined Business or the Transferred Companies and may redact any statements or other information on the portions of such Books and Records that do not relate to the Combined Business or the Transferred Companies.
(f) The Parties acknowledge that the Non-Disclosure Agreement remains in full force and effect; provided that after the Closing Date, (i) Purchaser’s confidentiality obligations thereunder shall terminate and be of no further force treat as confidential all information which is proprietary or effect only as confidential to the Combined Business Confidential Information, and (ii) the restrictions on solicitation and hiring thereunder shall terminate and be of no further force or effect only as to the Combined Business Employees.
(g) From the Closing Date until the seventh (7th) anniversary thereof, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parties and their respective Subsidiaries and their Representatives reasonable access to inspect and copy the Transferred Books and Records (other than books and records relating to Taxes, access to which that is governed exclusively by Section 10.3(c)) in respect of matters relating to or affected by operations of the Combined Business prior to the Closing Date, for any reasonable business purpose, or to enable them to prepare financial statements or tax returns, respond to tax audits or as they may otherwise reasonably request, except to the extent that furnishing any such information or data would violate any Legal Requirement or Order. From the Closing Date until such time as all obligations of the Seller Parties and their Affiliates under the Seller Financial Assurances have been fully and unconditionally released or otherwise terminated with no possibility of further liabilities on the not part of the Seller Parties or their Affiliates, the Purchaser shall (and shall cause its Subsidiaries, including the Transferred Companies, to) provide the Seller Parents and their Representatives reasonable access to such information, including the relevant portions Business that Buyer may learn as a result of the underlying Contracts (other than books and records relating to Taxes, access to which is governed exclusively by Section 10.3(c)) (i) as is reasonably necessary for any Seller Parent to determine its potential exposure under its outstanding Seller Financial Assurances or whether any Third Party Claim in respect of a Seller Financial Assurance is proper and to enforce, (ii) to permit its Affiliate to enforce any rights it may have under, or defend any claim under, any Seller Financial Assurance, (iii) for regulatory purposes or (iv) to enable them to prepare financial statements. Any such access shall be during normal business hours and on reasonable noticeContemplated Transactions, and shall only apply all information regarding the Contemplated Transactions, including, but not limited to, Records not related to the extent that furnishing any such information Business which may be delivered to Buyer before or data would not violate any Legal Requirement or Order (except that, with respect to the immediately preceding sentence, the Parties shall use commercially reasonable efforts to remove any such restriction or otherwise share such information in a manner that does not violate the relevant Legal Requirement or Order).
(h) In the event that the Seller Parties discover or are aware of any computer, word processor or data storage device that is part of the Excluded Assets contains any Combined Business Confidential Information, subject to applicable Legal Requirements, the Seller Parties will use commercially reasonable efforts to expunge or delete such information except to the extent and only for so long as, such information (i) is being used by such Seller Party in a manner expressly contemplated by the Related Agreements or (ii) is being retained by the legal department provided such Seller Party maintains the confidentiality of such information in accordance with Section 7.6(b) for so long as such information is retained.
(i) The parties acknowledge that the Commodities Trading and Services Agreements shall set forth specific provisions regarding access to records, confidentiality, use restrictions, and similar matters in relation to the provision and receipt of Portfolio Services (as defined in Exhibit A) (including Trading Activities) in relation to the operation of the Acquired Commodities Business Portfolio after the Closing (the “Post-Closing BusinessSeller’s Information”). Any provision , (ii) use the Seller’s Information only as necessary for Buyer to perform its obligations under this Agreement, Buyer’s Closing Documents, and the Contemplated Transactions, and (iii) take appropriate precautions to prevent access to or use of the Commodities Trading and Services Agreements which Seller’s Information except as expressly addresses matters described in contemplated under this Section 7.6 in relation 5.4; provided, however, that the Seller’s Information shall not include information which is or becomes publicly known through no fault of Buyer or any of its employees or Representatives. Buyer shall immediately return to Seller the portion of the Seller’s Information not related to the Post-Closing Business shallto the extent practicable.
(e) In the event that either Party (the “Disclosing Party”) is requested pursuant to, or required by, applicable law, regulation or legal process to disclose any of the Seller’s Information or the Buyer’s Information, as between the parties case may be (the “Information”), then the Disclosing Party shall first and promptly notify the other Party so that the other Party may seek a protective order or other appropriate remedy, which the other Party shall seek promptly thereafter if it elects to seek such protection. In the Commodities Trading event that such protective order or remedy is obtained, the Disclosing Party shall comply therewith and Services Agreements shall only disclose such Information which it is advised in writing by counsel is legally required to be disclosed. In the event that no such protective order or other remedy is obtained, the Disclosing Party shall furnish only that portion of the Information which it is advised in writing by counsel is legally required to be disclos ed and in relation the Disclosing Party shall use all reasonable efforts to such Post-Closing Business, supersede obtain reliable assurance that the provisions of this Section 7.6Information will be subject to appropriate confidentiality protections.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mesa Laboratories Inc /Co)
