Access and Information. (a) During the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof. (b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates. (c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates. (d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. (e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract. (f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 3 contracts
Sources: Master Agreement (AXA Equitable Holdings, Inc.), Master Agreement (Protective Life Insurance Co), Master Agreement (Protective Life Corp)
Access and Information. (a) During Between the period between the Contract Date date of this Agreement and the Closing DateEffective Time, the Company will give, and shall direct its accountants and legal counsel to give, Purchaser shall be entitledand its respective authorized representatives (including, through without limitation, its employees financial advisors, accountants and representatives legal counsel), at all reasonable times, access as reasonably requested to all offices and at other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company and its own expensesubsidiaries, will permit the foregoing to make such examination reasonable inspections as they may require and will cause its officers promptly to furnish Purchaser with (i) such financial and operating data and other information with respect to the business and properties of the Books Company and Records its subsidiaries as Purchaser may from time to time reasonably request. Any investigation, examination and (ii) a copy of each material report, schedule and other document filed or interview received by Purchaser of employees of any of Seller and its Affiliates or access the Company pursuant to any the requirements of applicable securities laws or the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to SellerNASD; provided, however, that, between the date hereof and the time of first acceptance of Shares for payment under the Offer, Purchaser may, upon the prior written approval (which shall not be unreasonably withheld or delayed) of the Company's Chief Executive Officer, Chief Financial Officer or General Counsel, (i) contact any employee of the Company directly, provided that such actions by Purchaser shall contact is for informational purposes only and does not unreasonably interfere with such employee's ongoing responsibilities to the normal operation Company, and (ii) have access to the Company's offices and facilities; and, following the time of first acceptance of Shares for payment under the Offer, Purchaser shall not be restricted in any manner in contacting employees of the BusinessCompany or in accessing the Company's offices and facilities. Notwithstanding No such access, inspections or furnishing of information shall have any other provisions adverse effect on Purchaser or Merger Sub's ability to assert that conditions to Closing or to the consummation of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as Offer have not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofbeen satisfied.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) The Chief Financial Officer of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only Company shall deliver to the extent that such records Purchaser immediately before the close of Parent, Seller or any of their Affiliates relate to MONY or business on the Business; day which is six (ii6) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or business days prior to the Closing. Access to then-scheduled expiration date of the Offer and immediately before the close of business on the then-scheduled expiration date of the Offer, a certificate executed by such employees officer which sets forth the anticipated number of issued and records shall not unreasonably interfere with outstanding Shares as of the business operations date of Seller or its Affiliatesthe expiration of the Offer.
(c) Following Without limiting any other provision of this Agreement, from time to time during the Closing DateOffer upon the request of the Purchaser, immediately before the close of business on the day which is six (6) business days prior to the then scheduled expiration date of the Offer and immediately before the close of business on the expiration date of the Offer, the Company shall inform Purchaser shallorally and in writing as to the then-current status of satisfaction of the conditions to the Offer described in paragraphs (c), and shall cause its Affiliates to: (e)(ii), (f), (g), (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (Ak) examine and make copies, at Seller’s expense, on Annex A hereto. The President of the books and records of MONY Company shall deliver to the extent relating to periods prior Purchaser promptly following the close of business on the then-scheduled expiration date of the Offer a certificate executed by such officer to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, effect that the conditions to the Offer specified in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliatesimmediately preceding sentence have been satisfied.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information Prior to the Affiliated Distributors that are parties execution and delivery of this Agreement, the Company shall have delivered to the Distribution Agreements, in accordance with the terms Purchaser a copy of duly adopted resolutions of the Distribution AgreementsBoard approving the execution, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, delivery and none performance of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance other agreements contemplated hereby and, in each case, the transactions contemplated thereby, certified by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing Secretary of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractCompany.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 3 contracts
Sources: Merger Agreement (Fox & Hound Restaurant Group), Merger Agreement (Fox & Hound Restaurant Group), Agreement and Plan of Merger (Fox & Hound Restaurant Group)
Access and Information. (a) During Except as may be (i) prohibited by applicable Law, (ii) prohibited by the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees terms of any of existing Seller Contract, or (iii) required to preserve legal privilege, Seller shall, upon reasonable notice from Buyer, (A) afford to Buyer and its Affiliates or Representatives reasonable access pursuant to any of the provisions of this Section 5.2 shall Purchased Assets and Seller’s books, records, officers, employees, advisors, counsel, facilities, properties, documents and other information with respect to the Business; provided such access will be conducted or occur at reasonable times during normal business hours and upon such other times as are reasonable prior notice and will be structured so as to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation conduct of the BusinessBusiness or the Purchased Assets; and (B) provide access to Buyer, as soon as reasonably practicable upon Buyer’s reasonable request, to make copies of such books, records, documents and information. Notwithstanding If Seller reasonably determines (after consultation with outside counsel) that any requested disclosure would cause any loss of a legal or other provisions privilege or require consent under any Seller Contract, (1) Seller shall provide Buyer with details regarding the type and nature of the information that is prohibited from being disclosed, including to which Sections of this Section 5.2Agreement such information relates and the monetary amount involved (to the extent that Seller is able to provide such details without compromising such attorney-client privilege or violating such confidentiality agreement), Purchaser and Seller (2) the Parties shall cooperate use commercially reasonable efforts to make appropriate alternative disclosure arrangements (e.g., the entry into an appropriate joint defense agreement in implementing connection with affording access to such information) or to obtain any such required consent. Buyer, at its sole cost and expense and in its sole discretion, may engage an environmental consultant to conduct a Phase I environmental investigation with respect to the provisions North Charleston Facility, on or prior to the Closing Date, upon at least five (5) Business Days prior written notice to Seller; provided that, notwithstanding any provision herein to the contrary, Buyer shall not be permitted to conduct (x) any Phase II environmental investigation or (y) any investigation or testing involving physically invasive sampling of this Section 5.2 so as not to prevent soil, ground water or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofother substances.
(b) Following Except as may be (i) prohibited by applicable Law, (ii) prohibited by the terms of any existing Contract of Buyer, or (iii) required to preserve legal privilege, for six (6) years from and after the Closing Date, each of Parent and Seller Buyer shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice from Seller, afford to Seller and during normal business hours, through its employees Representatives reasonable access to (and representatives, the right, at Purchaser’s expense, ability to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(hof) all of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings Business Books and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including Records existing as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving and, subject to the reasonable prior written notice to Purchaser discretion of its intent to destroy such documentsBuyer, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any the other books and records of Buyer and its Subsidiaries relating to the extent that electronic or paper copies or originals conduct of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Business following the Closing. Access ; provided such access will be during normal business hours and such other times as are reasonable and will be structured so as to such employees and records shall not unreasonably interfere with the business operations conduct of the Business; and provided further that Seller and Buyer are not engaged in litigation or its Affiliates.
any other dispute resolution process (c) Following the Closing Date, Purchaser shallincluding any claim for indemnification hereunder), and shall cause its Affiliates to: there does not exist any threatened or pending Claim (iwhether written or oral) allow Sellerbetween the Parties, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business or the transactions contemplated by this Agreement or such documents do not relate to the subject matter of such litigation or other proceedings or pending or threatened Claim. If Buyer reasonably determines (after consultation with outside counsel) that any requested by disclosure would cause any Affiliated Distributor loss of a legal or other privilege or require consent under any Contract of Buyer, (A) Buyer shall provide Seller with details regarding the type and nature of the information that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract prohibited from being disclosed, including to which Purchaser or any Sections of its Affiliates this Agreement such information relates and the monetary amount involved (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel extent that Buyer is able to provide such refusal to honor details without compromising such request would violate Applicable Law attorney-client privilege or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(dviolating such confidentiality agreement) and (eB) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser Parties shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly providemake appropriate alternative disclosure arrangements (e.g., or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants the entry into an appropriate joint defense agreement in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting affording access and its Affiliates with respect to any information provided to such other party pursuant information) or to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3obtain any such required consent.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Vought Aircraft Industries Inc), Asset Purchase Agreement (Boeing Co)
Access and Information. (a) During the period between from the Contract Date date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 8.1 or the Closing Date(the “Interim Period”), subject to Section 5.15, the Company shall give, and shall cause its Representatives to give, the Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur Representatives, at reasonable times during normal business hours and upon reasonable prior notice intervals and notice, reasonable access to Sellerall offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other information (including Tax Returns and Contracts), of or pertaining to the Target Companies, as the Purchaser or its Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any)) and cause each of the Company’s Representatives to reasonably cooperate with the Purchaser and its Representatives in their investigation; provided, however, that the Purchaser and its Representatives shall conduct any such actions by Purchaser shall activities in such a manner as not to unreasonably interfere with the normal operation business or operations of the Business. Notwithstanding Target Companies; and provided further, the Company shall not be required to provide, or cause to be provided to, the Purchaser or any other provisions of this Section 5.2its Representatives any information (i) if and to the extent doing so would (A) violate any Law to which any Target Company is subject, Purchaser and Seller (B) result in the disclosure of any trade secrets of third parties in breach of any Contract with such third party, (C) violate any legally-binding obligation of any Target Company with respect to confidentiality, non-disclosure or privacy or (D) jeopardize protections afforded to any Target Company under the attorney-client privilege or the attorney work product doctrine; provided that in each case the Target Company shall cooperate with the Purchaser to effect disclosure of such information in implementing the provisions of this Section 5.2 so as a manner which does not to prevent result in such a breach, violation or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofjeopardization.
(b) Following During the Closing DateInterim Period, each of Parent and Seller shallsubject to Section 5.15, the Purchaser shall give, and shall cause its Affiliates to: (i) allow PurchaserRepresentatives to give, upon the Company and its Representatives, at reasonable prior notice and times during normal business hourshours and upon reasonable intervals and notice, through its employees reasonable access to all offices and representativesother facilities and to all employees, the rightproperties, at Purchaser’s expenseContracts, to examine agreements, commitments, books and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose records, financial and operating data and other information (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Purchaser or its Subsidiaries, as the Company or its Representatives may reasonably request regarding the Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (including unaudited quarterly financial statements, but only including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the extent that such records requirements of Parentapplicable securities Laws, Seller and independent public accountants’ work papers (subject to the consent or any of their Affiliates relate to MONY or the Business; (iiother conditions required by such accountants, if any)) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) and cause each of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination Representatives to reasonably cooperate with the Company and copying until at least its Representatives in their investigation; provided, however, that the sixth anniversary Company and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its AffiliatesSubsidiaries.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Arogo Capital Acquisition Corp.), Merger Agreement (Data Knights Acquisition Corp.)
Access and Information. (a) During From the period between date hereof until the Contract Date Closing, the ED&F Parties shall, and shall cause each of the Transferred Companies to, permit Parent and the Closing DateMerger Subs and their financing providers, Purchaser shall be entitledif any, through its employees and their respective advisers and other representatives and at its own expenseto have reasonable access, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice notice, to Sellerthe Transferred Companies’ properties and facilities relating to the Business; provided, however, that no such actions by Purchaser access shall not unreasonably interfere with be granted to permit Parent or a Merger Sub or their respective Affiliates, advisers and other representatives to conduct any Phase II environmental site investigations or similar environmental sampling activities at, on, or under the normal operation of Transferred Companies’ properties and facilities. From the Business. Notwithstanding any date hereof until the Closing, Parent and the Merger Subs shall permit ED&F and its advisors and other provisions of this Section 5.2representatives to have reasonable access, Purchaser during business hours and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not upon reasonable notice, to prevent or interfere with Parent’s and Sellerthe Merger Subs’ properties and facilities. ED&F shall furnish, or cause to be furnished, to Parent and either Merger Sub any financial and operating data and other information (including Tax information) that is available with respect to the Business as Parent shall from time to time reasonably request, subject to any applicable Law, attorney-client privilege, or contractual restriction. Except to the extent provided in this Agreement or disclosed in the Disclosure Schedule, no information provided to or obtained by Parent pursuant to this Section 7.1 shall limit or otherwise affect the remedies available hereunder to Parent (including Parent’s compliance right to seek indemnification pursuant to ARTICLE X), or the representations or warranties of, or the conditions to the obligations of, the parties hereto. Parent and each Merger Sub shall furnish or cause to be furnished to ED&F any financial and operating data and other information (including Tax information) as ED&F shall from time to time reasonably request, subject to any applicable Law, attorney-client privilege and Parent’s and the Merger Subs’ contractual obligations. The parties hereto shall in good faith cooperate with Section 5.1 hereofeach other to develop, including during the period prior to Closing, the transition and migration plan for the services contemplated by the Shared Services Agreement.
(b) Following the Closing DateAll information provided to or obtained by Parent heretofore or hereafter, each of Parent and Seller shall, and shall cause its Affiliates to: including pursuant to clause (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(ha) of the Code)this Section 7.1, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records shall be held in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated confidence by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, Parent in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partythe Confidentiality Agreement, dated February 12, 2008, between Parent and ED&F (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f“Confidentiality Agreement”). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Transaction Agreement (Shermen WSC Acquisition Corp), Transaction Agreement (Shermen WSC Acquisition Corp)
Access and Information. (a) During For so long as this Merger Agreement is in effect, the period between the Contract Date Company shall, and the Closing Dateshall cause each Company Subsidiary to, Purchaser shall be entitled(i) afford to Acquiror and its officers, through its employees employees, accountants, consultants, legal counsel and other representatives and at its own expensereasonable access during normal business hours, subject to reasonable advance notice, to make such examination all of the Books their respective properties, Agreements, books, records and Records personnel and (ii) furnish promptly to Acquiror all other information concerning their respective businesses, operations, prospects, conditions (financial or otherwise), Assets, liabilities and personnel as Purchaser Acquiror may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing DateFor so long as this Merger Agreement is in effect, each of Parent Acquiror and Seller Merger Sub shall, and shall cause its Affiliates each Acquiror Subsidiary to: , (i) allow Purchaserafford to the Company and its officers, upon employees, accountants, consultants, legal counsel and other representatives reasonable prior notice and access during normal business hours, through its employees and representatives, the right, at Purchaser’s expensesubject to reasonable advance notice, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any all of their Affiliates relate to MONY or the Business; respective properties, Agreements, books, records and personnel and (ii) allow Purchaser furnish promptly to interview employees of Parent, Seller or any of the Company all other information concerning their respective Affiliates for any reasonable purpose relating to the Businessbusinesses, including the preparation operations, prospects, conditions (financial or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Codeotherwise), regulatory Assets, liabilities and statutory filings and financial statements and personnel as the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller Company may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesreasonably request.
(c) Following For so long as this Merger Agreement is in effect and from and after the Closing Datedate hereof, Purchaser shall, and shall cause its Affiliates to: each party agrees to discuss in good faith with the other party (i) allow Seller, upon reasonable prior notice and during normal business hours, through the occurrence of any material developments concerning their respective employees businesses and representativesassets, the right to (A) examine including any material adverse developments causing a breach of any of its own representations and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; warranties contained herein and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated any proposed write-off of any investment made by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller it or by any of its intent Subsidiaries. No disclosure by any party pursuant to destroy such documents. Access this Section 5.04(c) shall be deemed to such employees and books and records shall not unreasonably interfere with amend or supplement the business operations of Purchaser Company Disclosure Schedule or its Affiliatesthe Acquiror Disclosure Schedule.
(d) Following For so long as this Merger Agreement is in effect and from and after the Closing Datedate hereof, Purchaser shall, and the Company shall cause its Affiliates to, provide prompt written notice of the occurrence of any of the following events (whether or not such information event would be required to be disclosed pursuant to this Merger Agreement): (i) the receipt by the Company of written notice of any lawsuit against the Company or a Company Subsidiary which if determined adversely to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser Company or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or Company Subsidiary would reasonably be expected to result in monetary damages in excess of $100,000 or any restriction, in any material respect, on the replacement business or operations of the Distributors as servicers Company or brokers any Company Subsidiary, (ii) written notice by the provider of record any Indebtedness of a demand for the Insurance Contracts. Purchaser shall promptly make refund or otherwise request repayment of any changes in the servicer or broker of record with respect amounts advanced to the Business requested by Company, and (iii) written notice of a material default under any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyCompany Contract.
(e) Except For so long as set forth this Merger Agreement is in effect, the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller Company shall, following the end of the first full month following the date hereof and shall cause its Affiliates tofollowing the end of each month thereafter, use provide a written report (the "Company Monthly Report") containing the following information in reasonable detail: (i) cash reserves as of the date of such Company Monthly Report; (ii) the material terms of any information relating contract entered into by the Company or any Company Subsidiary not previously disclosed to Acquiror which involves payments by or to the Insurance Contracts Company or any Company Subsidiary in excess of $500,000 in any twelve (12) month period after the holders effective date of such contract; (ii) cash received by the Insurance Contracts only for Company during the purpose month of servicing customers such Company Monthly Report; (iii) any material developments with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration matters set forth on Schedule 5.01(k) of the Business). Following Company Disclosure Schedule; (iv) the Closing Date, resignation of any executive officer or senior manager level employee of the Company; (iv) Purchaser shall, written notice by any landlord of a late payment under any lease for real property; and shall cause its Affiliates to, use (vi) any information relating to the Insurance Contracts forgiveness or reduction of debt or account receivable in excess of $250,000 or the holders exchange or reduction of the Insurance Contracts only same for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser equity or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractconsideration.
(f) Anything to the contrary For so long as this Merger Agreement is in Section 5.2(a), (b), (c), (d) or (e) notwithstandingeffect, the party granting access may withhold Company shall furnish to Acquiror within 30 days after the end of each fiscal month of the Company, an unaudited consolidated balance sheet of the Company as of the end of such fiscal month and the related unaudited consolidated statements of operations, stockholders' equity and cash flows for the fiscal month then ended, prepared in accordance with GAAP, except for the absence of notes thereto and subject to normal recurring year end adjustments which will not be material in nature or amount, and certified by the chief financial officer or equivalent officer of the Company.
(g) For so long as this Merger Agreement is in effect and from and after the date hereof, Acquiror shall provide prompt written notice of the occurrence of any document of the following events (whether or portions thereof) or information not such event would be required to be disclosed pursuant to this Merger Agreement): (i) that is subject to the terms receipt by Acquiror of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver written notice of any such privilege lawsuit against Acquiror or (iii) an Acquiror Subsidiary which if the provision of access determined adversely to such document (Acquiror or portion thereof) or information, as determined by such party’s counsel, an Acquiror Subsidiary would reasonably be expected to violate Applicable Laws result in monetary damages in excess of $100,000 or any restriction, in any material respect, on the business or operations of Acquiror or any Acquiror Subsidiary, (ii) written notice by the provider of any Indebtedness of a demand for refund or otherwise request repayment of any amounts advanced to Acquiror, (iii) written notice of a material default under any Acquiror Contract, and (iv) any amendment, alteration, repeal or other modification, or waiver of any right or obligation under, any consents, releases, waivers or other instrument obtained from banks and/or guarantors under the Term Credit Agreement or Revolving Credit Agreement within 10 days of the intended effective date of any such amendment, alteration, repeal or other modification, or waiver.
(h) For so long as this Merger Agreement is in effect, Acquiror shall, following the party granting access end of the first full month following the date hereof and following the end of each month thereafter, provide a written report (the "Acquiror Monthly Report") containing the following information in reasonable detail: (i) cash reserves as of the date of such Acquiror Monthly Report; (ii) the material terms of any contract entered into by Acquiror or any Acquiror Subsidiary not previously disclosed to the Company which involves payments by or to Acquiror or any Acquiror Subsidiary in excess of $500,000 in any twelve (12) month period after the effective date of such contract; (iii) cash received by Acquiror during the month of such Acquiror Monthly Report; (iv) monthly subscriber information, including number of subscribers and average revenues per user; (v) the resignation of any executive officer or senior manager level employee of Acquiror; (vi) written notice by any landlord of a late payment under any lease for real property; and (vii) any forgiveness or reduction of debt or account receivable in excess of $250,000 or the exchange or reduction of the same for equity or other consideration.
(i) For so long as this Merger Agreement is in effect, Acquiror shall have used its commercially reasonable efforts furnish to provide the Company within 30 days after the end of each fiscal month of Acquiror, an unaudited consolidated balance sheet of Acquiror as of the end of such information without violation fiscal month and the related unaudited consolidated statements of Applicable Law. The party granting access shall promptly provideoperations, stockholders' equity and cash flows for the fiscal month then ended, prepared in accordance with GAAP, except for the absence of notes thereto and subject to normal recurring year end adjustments which will not be material in nature or cause its Affiliates to provideamount, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested and certified by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions chief financial officer or equivalent officer of Section 5.3Acquiror.
Appears in 2 contracts
Sources: Merger Agreement (Motient Corp), Merger Agreement (Rare Medium Group Inc)
Access and Information. (a) During From the period between date of this Agreement until the Contract earlier of the Closing Date or termination of this Agreement in accordance with its terms, subject to the terms of this Section 6.1 and the Closing Dateconfidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law) (as determined by Seller in its reasonable discretion in the case of clause (i) below or by Buyer in its reasonable discretion in the case of clause (ii) below), Purchaser (i) Seller shall be entitledand shall cause its Affiliates and Representatives to (A) afford Buyer and its Representatives reasonable access, through its during regular business hours and upon reasonable advance notice, to the Employees, the Books and Records, the Contracts, the assets and properties of the Transferred Entities and the employees and representatives Representatives of Seller who have knowledge relating directly to the BGI Business, in each case, in order that Buyer and at its own expense, Representatives shall have the reasonable opportunity to make such examination of investigation as Buyer and its Representatives shall reasonably require in connection with any matters relating to the Books Transferred Entities and Records the transactions contemplated by this Agreement, (B) furnish, or cause to be furnished, to Buyer and its Representatives any financial and operating data and other information that is reasonably available to Seller and its Representatives with respect to the Transferred Entities or the BGI Business as Purchaser Buyer and its Representatives from time to time may reasonably request. Any investigation, examination or interview by Purchaser of (C) instruct the Employees and the employees of any and Representatives of Seller and its Affiliates or access pursuant who have knowledge relating directly to any the BGI Business to cooperate reasonably with Buyer and its Representatives in their investigation of the provisions BGI Business and any matters relating thereto and to the transactions contemplated by this Agreement and (D) cooperate reasonably with Buyer in connection with any approvals, applications, waivers, consents or any other request for information or requirements of this Section 5.2 any Government Entity to be made, filed or obtained by Buyer, and (ii) Buyer shall be conducted or occur at and shall cause its Affiliates and Representatives to (A) afford Seller and its Representatives reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to information relating to Buyer in connection with such investigation as Seller and its Representatives shall reasonably require in connection with any matters relating to the transactions contemplated by this Agreement, (B) furnish, or cause to be furnished, to Seller and its Representatives any financial and operating data and other information that is reasonably available to Buyer and its Representatives with respect to Buyer as Seller and its Representatives from time to time may reasonably request, (C) instruct the employees and Representatives of Buyer and its Affiliates who have knowledge relating to Buyer to cooperate reasonably with Seller and its Representatives in their investigation of Buyer and any matters relating thereto and to the transactions contemplated by this Agreement and (D) cooperate reasonably with Seller in connection with any approvals, applications, waivers, consents or any other request for information or requirements of any Government Entity to be made, filed or obtained by Seller; provided, however, that such actions by Purchaser in no event shall not unreasonably interfere with any party have access to any information if allowing that access (x) based on advice of counsel to the normal operation of the Business. Notwithstanding any other provisions of party that is providing access, information or cooperation pursuant to this Section 5.2, Purchaser and Seller shall cooperate in implementing 6.1(a) (the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code“Providing Party”), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement loss of attorney-client privilege (provided that the Providing Party and its counsel shall use commercially reasonable efforts to enter into such joint defense agreements or other arrangements, as appropriate, so as to allow for such disclosure in a manner that does not result in the loss of attorney client privilege), or (y) would in the reasonable judgment of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes Providing Party (A) result in the servicer disclosure of any material trade secrets, unless the applicable information is reasonably necessary for integration purposes and then only if it does not involve the furnishing of information about sensitive fiduciary matters, or broker (B) violate any obligation of record the Providing Party with respect to confidentiality so long as, with respect to confidentiality, the Providing Party has made commercially reasonable efforts to safeguard the confidentiality of any such information and minimize any reasonable concerns in connection therewith including seeking to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; provided, further, that with respect to clauses (x) and (y) of this Section 6.1(a), in the event that any such clauses prevents the providing of information pursuant to this Section 6.1(a), the Providing Party shall use commercially reasonable efforts to develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the receiving party. All requests for information made pursuant to this Section 6.1(a) shall be directed in writing to an executive officer of Seller or Buyer, as the case may be, or such Person or Persons as may be designated by Seller or Buyer, as the case may be.
(b) Between the date hereof and the earlier of the Closing Date and the date on which this Agreement is terminated in accordance with its terms, subject to the terms of this Section 6.1(b) and the confidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law), Seller shall provide to Buyer on a monthly basis as promptly as they become available (A) copies of all regularly prepared monthly financial statements and reports on the Transferred Entities or the BGI Business, as appropriate, including statements of operations and balance sheets, (B) updates with respect to the Business requested obtaining of consents in connection with the transactions contemplated hereby, including such consents contemplated by any Affiliated Distributor that is Section 6.6, Section 6.9 and Section 6.10, (C) an updated Base Revenue Schedule, and (D) a party to a Distribution Agreement; provided that calculation of Closing Revenue Run Rate, Closing Adjustment Revenue Run Rate, Closing Adjustment ETF Revenue Run Rate and the Revenue Run Rate Adjustment Amount as of the end of each month and such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect supporting documentation relating to the Businessforegoing and the Initial Base Revenue Schedule as Buyer may reasonably request including a schedule with reasonable detail supporting the determinations of each of the elements of the items set forth in clauses (C) and (D) (it being understood that the information provided under clauses (C) and (D) will be provided exclusively pursuant to the procedures previously agreed between the parties). In addition, unless subject to applicable Law, Seller shall provide Buyer with access to all Books and Records and personnel reasonably necessary for Buyer’s financial reporting obligation, and Seller shall, at Buyer’s reasonable request, engage appropriate consultants at Buyer’s cost and as Buyer reasonably deems necessary for its financial reporting obligation related to Seller for periods following the Closing. In the event that the Closing shall be on or prior to December 1, 2009, Seller shall bear all of Buyer’s reasonable out-of-pocket costs in connection with the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as activities set forth in the last preceding sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date (and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates toin such circumstance, use refund any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices amounts previously paid by Buyer).
(including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). c) (i) Following the Closing Date, to the extent permitted by applicable Law (i) Purchaser shallas determined by Buyer in its reasonable discretion), and Buyer shall provide (or cause its Affiliates toSubsidiaries and Representatives to provide) Seller and its Representatives with reasonable access, use any information relating during regular business hours and upon reasonable advance notice, to the Insurance Contracts Books and Records and any other documents that Buyer through the Transferred Entities acquires pursuant to this Agreement and access to and the assistance of Buyer’s and the Transferred Entities’ employees and Representatives, in each case, to the extent that such access and assistance is related to any Transferred Entity, UK Holdings, any entity contemplated by Section 6.26(d) and not sold hereby or the holders BGI Business during the period prior to the Closing Date and otherwise necessary for Seller or its Representatives to comply with the terms of this Agreement, any applicable Law (including the obligations of Seller and its Affiliates to produce as required by applicable Law accounts, attestations and reports (and contributory internal deliverables in accordance with past practice) in respect of the Insurance Contracts only for the purposes of servicing customers with respect 2009 financial year (and up to the Insurance Contracts Closing if later), for which purpose Buyer will use commercially reasonable efforts to retain sufficient appropriately-skilled relevant personnel) or any request of a Government Entity; provided, however, that any such access, review and operating assistance shall be granted and administering conducted in such manner as not to interfere unreasonably with the Business (including any purpose relating to compliance by Purchaser conduct of the business of Buyer or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Barclays Bank PLC /Eng/), Stock Purchase Agreement (BlackRock Inc.)
Access and Information. (a) During the period between the Contract Date and [Reserved]
(b) After the Closing Date, Purchaser Seller and Buyer shall provide, and shall cause their respective Affiliates to provide, to each other and to their respective officers, employees, accountants, counsel and other representatives, upon request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege), reasonable access for inspection and copying of all Business Records, Governmental Permits, Licenses, Contracts and any other information existing as of the Closing Date and relating to the CATV Business, the Purchased Assets, the Assumed Liabilities or the Transferred Employees and shall make their respective personnel reasonably available for interviews, depositions and testimony in any legal matter concerning transactions contemplated by this Agreement, the operations or activities relating to the CATV Business, the Purchased Assets, the Assumed Liabilities or the Transferred Employees and as otherwise may be necessary or desirable to enable the party requesting such assistance to: (i) comply with any reporting, filing or other requirements imposed by any Governmental Body; (ii) assert or defend any claims or allegations in any litigation or arbitration or in any administrative or legal proceeding other than claims or allegations that one party to this Agreement has asserted against the other; (iii) prepare any and all historical or pro forma financial statements related to the CATV Business for purposes of complying, or preparing to comply, with any rules or regulations of the Securities and Exchange Commission; or (iv) subject to clause (ii) above, perform its obligations under this Agreement. The party requesting such information or assistance shall reimburse the other party for all reasonable and necessary out-of-pocket costs and expenses, if any, incurred by such party in providing such information and in rendering such assistance.
(c) The access to files, books and records contemplated by this Section 5.1 shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access be subject to such employees and records shall not unreasonably interfere with reasonable limitations as the business operations party having custody or control thereof may impose to preserve the confidentiality of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliatesinformation contained therein.
(d) Following Buyer, Seller and the Subsidiaries shall preserve all Business Records, Licenses and Governmental Permits to which they retain title for at least seven (7) years after the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Emcore Corp), Asset Purchase Agreement (Agere Systems Inc)
Access and Information. (a) During From the period between the Contract Date and date of this Agreement until the Closing Dateor earlier termination of this Agreement in accordance with Section 9.1, Purchaser and except as determined by Sellers in good faith to be appropriate to ensure compliance with any applicable Laws and subject to any applicable privileges (including the attorney-client privilege), Sellers shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller permit Buyer and its Affiliates or access pursuant representatives to any of the provisions of this Section 5.2 shall be conducted or occur at have reasonable times access, during normal regular business hours and upon reasonable advance notice, to (i) the offices, facilities, properties and the financial, accounting and other books and records of Sellers and the Acquired Companies relating to the Business (provided such access does not permit “Phase II” or other environmental sampling, testing or investigations) and (ii) the appropriate management personnel of Sellers and the Acquired Companies. Without limiting the foregoing, Sellers shall furnish to Buyer and its representatives such additional financial and operating data and other information regarding the Business as Buyer may from time to time reasonably request for purposes of conducting its due diligence review of the Business, preparing to operate the Business following the Closing and in connection with the consummation of the transactions contemplated hereby. It is understood that Sellers shall be under no obligation to grant Buyer or its representatives any access if such access would, under the circumstances and in the sole discretion of Sellers, unreasonably interfere with Sellers’ or their respective Affiliates’ operations, activities or employees, or if such access would, in the reasonable judgment of Sellers, violate applicable antitrust or similar Laws. With respect to any Persons with which any Seller, any Acquired Company or the Satair JV has a direct or indirect contractual relationship, and any Governmental Authorities with jurisdiction over or that regulates any Sellers, any Acquired Company the Satair JV or the Business, Buyer shall not make any independent inquiry with respect to any Seller, any Acquired Company, the Satair JV, or the Business without Sellers’ prior notice written consent and, to Sellerthe extent Sellers consent thereto, all such inquiries shall be conducted by Sellers in response to a request by Buyer.
(b) All information provided or obtained pursuant to Section 5.1(a) shall be held by Buyer in accordance with, and subject to the terms of, and shall constitute “Evaluation Material” under, the Confidentiality Agreement, dated October 20, 2014, between TransDigm Group Incorporated and AAR CORP. (the “Confidentiality Agreement”). The parties hereby agree that, notwithstanding anything to the contrary contained in the Confidentiality Agreement, the Confidentiality Agreement shall automatically terminate upon the Closing; provided that Sections 2 and 3 of the Confidentiality Agreement shall survive the Closing in accordance with the time periods set forth in such Sections; provided, further, that notwithstanding anything contained in the Confidentiality Agreement, Section 3 of the Confidentiality Agreement shall not apply to any Transferred Employee or any employee of any Acquired Company or the Satair JV.
(c) For two years after the Closing Date, Sellers will, and will cause their respective Affiliates, agents and other representatives to, treat and hold as strictly confidential, and refrain from using or disclosing, all of the Confidential Information; provided, however, that nothing in this Agreement shall restrict the ability of Sellers or their Affiliates to use Confidential Information (i) for internal business purposes, compliance with public reporting obligations, or preparation of tax returns and other tax planning purposes, or (ii) as necessary for Sellers and their Affiliates to fulfill their obligations under the Transition Services Agreement. If either Seller is requested or legally required to disclose any Confidential Information, such actions by Purchaser shall not unreasonably interfere Seller will notify Buyer promptly of the request or requirement so that Buyer or its Affiliates may seek an appropriate protective order or waive compliance with the normal operation provisions hereof. If, in the absence of a protective order or the receipt of a waiver hereunder, such Seller is, on the advice of counsel, compelled to disclose any Confidential Information to any tribunal or else stand liable for contempt, such Seller may disclose the Confidential Information to the tribunal, but such Seller shall use its reasonable efforts to obtain, at Buyer’s or its Affiliate’s request and expense, an order or other assurance that confidential treatment will be accorded to such portion of the BusinessConfidential Information required to be disclosed as Buyer or its Affiliate designates. Notwithstanding As used in this Section 5.1(c), the term “Confidential Information” means any other provisions information concerning the businesses and affairs of the Business that is not, as of the date of this Section 5.2Agreement, Purchaser and Seller shall cooperate in implementing already generally available to the public; provided, however, that the term “Confidential Information” does not include information that (i) is or becomes available to Sellers or their respective Affiliates on a non-confidential basis from a source other than the Business, provided that such other source is not known to such Person after due inquiry to be bound by a confidentiality obligation to the Business or is otherwise known by Sellers or their respective Affiliates after due inquiry to be prohibited from disclosing the information to Sellers or their respective Affiliates, (ii) is or becomes generally available to the public (other than as a result of a violation by Sellers or their respective Affiliates of the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the CodeAgreement), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller (iii) is independently developed by Sellers or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for without use of or reference to any reasonable purpose relating Confidential Information or violation of the provisions of this Agreement. Notwithstanding the first sentence of this Section 5.1(c), Sellers’ obligations with respect to the Business, including the preparation or examination of Tax Returns (including as Confidential Information that is reasonably necessary deemed a trade secret under applicable Law shall survive for the purpose period of determining whether or time pursuant to which such trade secrets are protected under such applicable Law (and shall not an Insurance Contract has met expire automatically upon the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth second anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates).
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Purchase Agreement (Aar Corp), Purchase Agreement (TransDigm Group INC)
Access and Information. (a) During Between the period between the Contract Date date of this Agreement and the Closing DateEffective Time, the Company will give, and shall direct its accountants and legal counsel to give, Purchaser shall be entitledand its respective authorized representatives (including, through without limitation, its employees financial advisors, accountants and representatives legal counsel), at all reasonable times, access as reasonably requested to all offices and at its own expenseother facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company, will permit the foregoing to make such examination reasonable inspections as they may require and will cause its officers promptly to furnish Purchaser with (i) such financial and operating data and other information with respect to the business and properties of the Books and Records Company as Purchaser may from time to time reasonably request. Any investigation, examination and (ii) a copy of each material report, schedule and other document filed or interview received by Purchaser of employees of any of Seller and its Affiliates or access the Company pursuant to any the requirements of applicable securities laws or the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to SellerNASD; provided, however, that, between the date hereof and the time of first acceptance of Shares for payment under the Offer, (i) Purchaser may, with prior notice to the Company’s Chief Executive Officer, Chief Financial Officer or General Counsel, contact any employee of the Company directly, provided that such actions by Purchaser shall contact is for informational purposes only and does not unreasonably interfere with such employee’s ongoing responsibilities to the normal operation Company, and (ii) access to the Company’s offices and facilities shall only be with the sole and absolute, prior written consent of the Business. Notwithstanding any other provisions Company’s Chief Executive Officer, Chief Financial Officer or General Counsel (provided that this Agreement shall not constitute prior written consent); and, following the time of this Section 5.2first acceptance of Shares for payment under the Offer, Purchaser shall not be restricted in any manner in contacting employees of the Company or in accessing the Company’s offices and Seller facilities. No such access, inspections or furnishment of information shall cooperate in implementing have any adverse effect on Purchaser or Merger Sub’s ability to assert that conditions to Closing or to the provisions consummation of this Section 5.2 so as the Offer have not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofbeen satisfied.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) The Chief Financial Officer of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only Company shall deliver to the extent that such records Purchaser immediately before the close of Parent, Seller or any of their Affiliates relate to MONY or business on the Business; day which is six (ii6) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or business days prior to the Closing. Access to then-scheduled expiration date of the Offer and immediately before the close of business on the then-scheduled expiration date of the Offer, a certificate executed by such employees officer which sets forth the number of issued and records shall not unreasonably interfere with outstanding Shares as of the business operations date of Seller or its Affiliatesthe expiration of the Offer.
(c) Following Without limiting any other provision of this Agreement, from time to time during the Closing DateOffer upon the request of the Purchaser, immediately before the close of business on the day which is six (6) business days prior to the then scheduled expiration date of the Offer and immediately before the close of business on the expiration date of the Offer, the Company shall inform Purchaser shallorally and in writing as to the then-current status of satisfaction of the conditions to the Offer described in paragraphs (c), and shall cause its Affiliates to: (e), (f), (g), (h), (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A1) examine and make copies, at Seller’s expense, on Annex A hereto. The President of the books and records of MONY Company shall deliver to the extent relating to periods prior Purchaser promptly following the close of business on the then-scheduled expiration date of the Offer a certificate executed by such officer to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, effect that the conditions to the Offer specified in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliatesimmediately preceding sentence have been satisfied.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information Prior to the Affiliated Distributors that are parties execution and delivery of this Agreement, the Company shall have delivered to the Distribution Agreements, in accordance with the terms Purchaser a copy of duly adopted resolutions of the Distribution AgreementsCompany’s Board of Directors approving the execution, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, delivery and none performance of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements other agreements contemplated hereby (including any purpose relating to compliance the Stockholders Agreement and the Stock Option Agreement) and, in each case, the transactions contemplated thereby, certified by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing Secretary of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractCompany.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Merger Agreement (Safenet Inc), Merger Agreement (Safenet Inc)
Access and Information. (a) During the period between from the Contract Date date of this Agreement and continuing until the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination earlier of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions termination of this Agreement in accordance with Section 5.2 12.1 or the Second Merger Closing (the “Interim Period”), subject to Section 9.18, the Company, Orca Midco and Orca shall be conducted or occur give, and shall cause their respective Representatives to give, each of Pubco and SPAC and their respective Representatives, at reasonable times during normal business hours and at reasonable intervals and upon reasonable prior notice advance notice, reasonable access to Sellerall offices and other facilities and to all employees, properties, Contracts, books and records, financial and operating data and other similar information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Target Companies, as each of Pubco and SPAC and their respective Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, operations, management, employees and other aspects, and cause each of the Representatives of the Target Companies to reasonably cooperate with each of Pubco and SPAC and their respective Representatives in their investigation; provided, however, that each of Pubco and SPAC and their respective Representatives shall conduct any such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate activities in implementing the provisions of this Section 5.2 so such a manner as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business or operations of Seller or its Affiliates.
the Target Companies. Each of Pubco, Pubco, Merger Sub I, Merger Sub II and SPAC hereby agree that, during the Interim Period, it shall not contact any employee (c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(Bother than executive officers), in connection with customer, supplier, distributor or other material business relation of any Target Company regarding any Target Company, its business or the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in Transactions without the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice consent of such Target Company (such consent not to Seller of its intent to destroy such documents. Access to such employees and books and records shall not be unreasonably interfere with the business operations of Purchaser withheld, conditioned or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Businessdelayed). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding Notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor the Target Companies shall not be required to provide access to any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject prohibited from being disclosed pursuant to the terms of a non-disclosure written confidentiality agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer disclosure of whichwhich would violate any Law, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege.
(b) During the Interim Period, subject to Section 9.18, SPAC shall give, and shall cause its Representatives to give, each of the Company, Orca Midco and Orca and their respective Representatives, at reasonable times during normal business hours and at reasonable intervals and upon reasonable advance notice, reasonable access to such document all offices and other facilities and to all employees, properties, Contracts, books and records, financial and operating data and other similar information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or portion thereof) or informationpertaining to SPAC, as determined by each of the Company, Orca Midco and Orca or their respective Representatives may reasonably request regarding SPAC and its business, assets, Liabilities, financial condition, operations, management, employees and other aspects, and cause each of the Representatives of SPAC to reasonably cooperate with each of the Company, Orca Midco and Orca and their respective Representatives in their investigation; provided, however, that each of the Company, Orca Midco and Orca and their respective Representatives shall conduct any such party’s counselactivities in such a manner as not to unreasonably interfere with the business or operations of SPAC. Notwithstanding the foregoing, would reasonably SPAC shall not be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts required to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party (i) that is prohibited from being disclosed pursuant to this the terms of a written confidentiality agreement with a third party, (ii) the disclosure of which would violate any Law, or (iii) the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege.
(c) During the Interim Period, subject to Section 5.2(f9.18, Pubco, Merger Sub I and Merger Sub II shall give, and shall cause their respective Representatives to give, each of SPAC, the Company, Orca Midco and Orca and their respective Representatives, at reasonable times during normal business hours and at reasonable intervals and upon reasonable advance notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, books and records, financial and operating data and other similar information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to Pubco, Merger Sub I and Merger Sub II, as each of SPAC, the Company, Orca Midco and Orca or their respective Representatives may reasonably request regarding Pubco, Merger Sub I and Merger Sub II and its business, assets, Liabilities, financial condition, operations, management, employees and other aspects, and cause each of the Representatives of Pubco, Merger Sub I and Merger Sub II to reasonably cooperate with each of SPAC, the Company, Orca Midco and Orca and their respective Representatives in their investigation; provided, however, that each of SPAC, the Company, Orca Midco and Orca and their respective Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of Pubco, Merger Sub I and Merger Sub II. Any Notwithstanding the foregoing, Pubco, Merger Sub I and Merger Sub II shall not be required to provide access to any information provided (i) that is prohibited from being disclosed pursuant to this Section 5.2 shall be subject to the applicable provisions terms of Section 5.3a written confidentiality agreement with a third party, (ii) the disclosure of which would violate any Law, or (iii) the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege.
Appears in 2 contracts
Sources: Business Combination Agreement (OpSec Holdings), Business Combination Agreement (Investcorp Europe Acquisition Corp I)
Access and Information. (a) During Between the period between the Contract Date date hereof and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination earlier of the Books and Records as Purchaser may reasonably request. Any investigation, examination Closing or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions termination of this Section 5.2 shall Agreement in accordance with ARTICLE IX hereof, subject to compliance with applicable Law and compliance with restrictions under the Confidentiality Agreements and any other binding non-disclosure or confidentiality agreement, and except as could reasonably be conducted expected to result in disclosure of information or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; materials protected by attorney client, attorney work product or other legally recognized privileges or immunity from disclosure (provided, however, that the Company shall use its commercially reasonable efforts to allow for access or disclosure in a manner that does not result in a breach of any such actions agreement or a loss of attorney-client privilege or other immunity from disclosure, including by Purchaser shall not unreasonably interfere with the normal operation provision of appropriate substitute disclosure arrangements), the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller Company shall, and shall cause its Affiliates Subsidiaries and their respective officers, directors, employees, counsel, accountants, representatives and other agents (collectively, “Agents”) to: (i) allow Purchaser, upon reasonable prior advance notice from the Purchaser and subject to reasonable coordination between Purchaser and the Company as to the timing and nature of such access (which such notice and coordination should be to and with the Company’s Chief Executive Officer, Chief Financial Officer or such other person as the Company may designate in writing from time to time), provide the Purchaser and its Agents reasonable access, during normal business hours, through without interfering with the operation of the business of the Company or its employees and representatives, the right, at Purchaser’s expenseSubsidiaries, to examine the premises, employees (including executive officers), properties (including, for the purposes of conducting non-subsurface environmental assessments), contracts, books, records and make copies other information (including Tax Returns filed and those in preparation) of the Company and its Subsidiaries and shall cause the Company’s and its Subsidiaries’ officers to furnish to and discuss with the Purchaser and its Agents, such financial, business, technical and operating data and other information pertaining to the Company and its Subsidiaries as Purchaser may reasonably request, subject to compliance with applicable Law, including the HSR Act. Notwithstanding anything to the contrary herein, in the event that the Purchaser and its Agents desire to initiate contact or communicate with any records retained by Seller of the Special Affiliates, any of the employees (other than [*]), vendors or payors of the Company or its Subsidiaries, or with any other Person with a material business relationship with the Company or any of its Affiliates for any reasonable business purpose (including as the Subsidiaries, and such contact or communication directly or indirectly relates to or is reasonably necessary for in connection with the purpose of determining whether Merger or not an Insurance Contract has met the diversification requirements of Section 817(h) transactions contemplated hereby, the Purchaser shall first consult with and obtain the written consent of the Code), including Company.
(b) From and after the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying date hereof until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates Company shall have no obligation to maintain or retain any books and records furnish to the extent that electronic or paper copies or originals Purchaser within twenty (20) Business Days after the end of each calendar month, the unaudited consolidated financial statements for such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesmonth.
(c) Following During the period commencing on the date hereof and ending on the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting accessPurchaser and as permitted by applicable Law, the other party Company shall enter into a customary joint defense agreement confer in good faith with the party granting access Purchaser regarding the general status of on-going operations of the Company and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Fresenius Medical Care AG & Co. KGaA), Agreement and Plan of Merger (Fresenius Medical Care AG & Co. KGaA)
Access and Information. (a) During the period between from the Contract Date date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 11.1 or the Closing Date(the “Interim Period”), subject to Section 8.13, each of the Company, Pubco and Merger Sub shall give, and shall cause its Representatives to give, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur Representatives, at reasonable times during normal business hours and at reasonable intervals and upon reasonable prior notice advance notice, reasonable access to Sellerall offices and other facilities and to all employees, properties, Contracts, books and records, financial and operating data and other similar information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Target Companies, Pubco or Merger Sub as Purchaser or its Representatives may reasonably request regarding the Target Companies, Pubco or Merger Sub and their respective businesses, assets, Liabilities, financial condition, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any) in each case, if the financial statements or other documents already exist) and cause each of the Representatives of the Company, Pubco and Merger Sub to reasonably cooperate with Purchaser and its Representatives in their investigation; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller its Representatives shall cooperate conduct any such activities in implementing the provisions of this Section 5.2 so such a manner as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business or operations of Seller the Target Companies, Pubco or its Affiliates.
Merger Sub. Purchaser hereby agrees that, during the Interim Period, it shall not contact any employee (c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(Bother than executive officers), in connection with customer, supplier, distributor or other material business relation of any Target Company regarding any Target Company, its business or the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances transactions contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Ancillary Documents without the servicing prior written consent of the BusinessCompany (such consent not to be unreasonably withheld, conditioned or delayed). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding Notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor the Company shall not be required to provide access to any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject personally identifiable information of a third party which is prohibited from being disclosed pursuant to the terms of a non-disclosure written confidentiality agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer disclosure of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of which would violate any such privilege Law or (iii) if the provision disclosure of access to such document (which would constitute a waiver of attorney-client, attorney work product or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3legal privilege.
Appears in 2 contracts
Sources: Business Combination Agreement (Proficient Alpha Acquisition Corp), Business Combination Agreement (Proficient Alpha Acquisition Corp)
Access and Information. (a) During From the period between date hereof until the Contract Date Closing, subject to reasonable rules and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any regulations of Seller and any applicable Legal Requirements, Seller shall (i) afford Buyer and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times Representatives access, during normal regular business hours and upon reasonable advance notice, but in no event less than 72 hours prior notice notice, to Seller; providedthe Employees, howeverthe Assets and the Books and Records, (ii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that such actions by Purchaser shall not unreasonably interfere is available with respect to the normal operation Assets, Assumed Liabilities or the Business as Buyer from time to time reasonably requests and (iii) instruct the Employees and its Representatives to reasonably cooperate with Buyer in its investigation of the Assets, Assumed Liabilities and the Business. Notwithstanding any other provisions of No investigation pursuant to this Section 5.2, Purchaser and 7.3(a) or otherwise by Buyer or its Representatives shall alter any representation or warranty given hereunder by Seller shall cooperate in implementing the provisions of or affect any Buyer Indemnified Party’s rights to indemnification hereunder. All requests for information made pursuant to this Section 5.2 so 7.3(a) shall be directed to an executive officer of Seller or such Person or Persons as not may be designated by Seller. All information received in any form pursuant to prevent or interfere with Parent’s this Section 7.3(a) shall be governed by the terms of the Confidentiality Agreement and Seller’s compliance with shall be held in confidence pursuant to Section 5.1 7.9 hereof.
(b) Following the Closing, upon the request of the other party, Seller and Buyer shall, to the extent permitted by applicable Legal Requirements and confidentiality obligations existing as of the Closing Date, each grant to the other party and its Representatives during regular business hours and subject to reasonable rules and regulations of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representativesthe granting party, the right, at Purchaser’s expensethe expense of the non-granting party, to examine inspect and make copies of any copy the books, records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for and other documents in the purpose of determining whether or not an Insurance Contract has met granting party’s possession pertaining to the diversification requirements of Section 817(h) operation of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY Assets or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing (including books of account, records, files, invoices, correspondence and (B) interview Purchaser’s memoranda, customer and its Affiliates’ employeessupplier lists, in the case of data, specifications, insurance policies, operating history information and inventory records). In no event shall either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available party have access to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary legally privileged information of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a other party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authoritythe consolidated federal, relating to the ownership, operation state or administration local Tax Returns of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractparty.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Cafepress Inc.)
Access and Information. Buyer and Seller shall provide each to the other:
(a) During Buyer shall afford to Seller and its accountants, counsel and other representatives full access, during normal business hours throughout the period between the Contract Date and prior to the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination all of the Books properties, books, contracts, commitments and Records as Purchaser records (including but not limited to tax returns) of Buyer and, during such period, Buyer shall furnish promptly to Seller (i) a copy of each report, schedule and other document filed or received by it pursuant to the requirements of federal or state securities laws, and (ii) all other information concerning the business, properties and personnel of Buyer that may reasonably requestbe requested. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any In the event of the provisions termination of this Section 5.2 shall be conducted Agreement, Buyer will, and will cause its representative to, deliver to Seller all documents, work papers and other material, and all copies thereof, obtained by it or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions on its behalf from Seller as a result of this Section 5.2Agreement or in connection herewith, Purchaser whether so obtained before or after the execution hereof, and will hold in confidence all confidential information, and will not use any such confidential information, until such time as such information is otherwise publicly available or as it is advised by counsel that any such information or document is required by law to be disclosed. If this Agreement is terminated, Buyer will promptly deliver to Seller shall cooperate in implementing the provisions of this Section 5.2 all documents so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofobtained by it.
(b) Following Seller shall afford to Buyer and its accountants, counsel and other representatives full access, during normal business hours throughout the period prior to the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, all of the books and records of MONY records, (including but not limited to tax returns) pertaining to the extent relating company being Acquired by Buyer, during such period, Seller shall furnish promptly to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause Buyer (i) above. Purchaser shall maintain a copy of each report, schedule and make available to Seller the books and records of MONY other document filed or received by it pursuant to the extent relating to periods prior to requirements of federal or state securities laws, and requested by Buyer. In the Closing until at least the sixth anniversary event of the Closing Datetermination of this Agreement, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shallwill, and shall will cause its Affiliates representative to, provide deliver to Buyer all documents, work papers and other material, and all copies thereof, obtained by it or on its behalf from Buyer as a result of this Agreement or in connection herewith, whether so obtained before or after the execution hereof, and will hold in confidence all confidential information, and will not use any such confidential information, until such time as such information is otherwise publicly available or as it is advised by counsel that any such information or document is required by law to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as be disclosed. If this Agreement is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parentterminated, Seller or any of their respective Affiliates with any Applicable Law, or will deliver to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance Buyer all documents so obtained by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractit.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Acquisition Agreement (Homelife Inc), Acquisition Agreement (Homelife Inc)
Access and Information. (a) During the period between commencing on the Contract Agreement Date and ending at the Closing DateTransfer Time, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser Merck Serono shall, and shall cause its Affiliates to, provide such information upon reasonable prior notice and at reasonable hours, afford BioMarin and its officers, employees, agents, attorneys, consultants, advisors and other representatives (collectively, “Representatives”), continued reasonable access to Merck Serono’s and its Affiliates’ employees to discuss the Products and access to the Affiliated Distributors that are parties properties, Contracts, books and records (excluding Tax records and Tax Returns) of Merck Serono and its Affiliates, to the Distribution Agreementsextent related to the Products, in accordance with and during such period, shall use its commercially reasonable efforts to provide to BioMarin such Contracts, information, books and records to the terms of extent that they relate to the Distribution AgreementsProducts, as is necessary to enable BioMarin may reasonably request, provided, that such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect access shall not unreasonably disrupt Merck Serono’s ordinary course operations. Notwithstanding anything to the Insurance Contractscontrary contained in this Agreement, and none Merck Serono shall not be required to disclose any information or provide any such access if such disclosure or access would [*] (i) violate Law, (ii) violate the provisions of Purchaser or a binding agreement entered into prior to the Agreement Date (including any confidentiality agreement to which Merck Serono is a party), provided, that Merck Serono shall use commercially reasonable efforts to obtain the consent of its Affiliates shallany such Third Party to such disclosure, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to (iii) result in the replacement waiver of the Distributors as servicers any attorney/client privilege or brokers of record for the Insurance Contracts. Purchaser shall promptly make other established legal privilege or (iv) disclose any changes trade secrets not included in the servicer or broker of record with respect Transferred Intellectual Property. If any material is withheld by Merck Serono pursuant to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser immediately preceding sentence, Merck Serono shall not honor the request of any other Person to change the servicer or broker of record with respect inform BioMarin as to the Business, unless in general nature of what is being withheld and the opinion of Purchaser’s counsel basis for withholding such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partymaterial.
(eb) Except as set forth in For a period of [*] following the last sentence of this Section 5.2(e) or in Section 5.14(f)Transfer Time, between the Contract Date and the Closing Date, each of Parent and Seller Merck Serono shall, and shall cause its Affiliates to, use any information permit BioMarin and its representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Merck Serono or its Affiliates, as applicable, to the books and records of Merck Serono and its Affiliates to the extent relating to the Insurance Contracts Transferred Assets or the holders of the Insurance Contracts only for the purpose of servicing customers with respect Products, and to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, extent such access may reasonably be required: (i) Purchaser shallin connection with the preparation of BioMarin’s accounting records, and shall cause its Affiliates to, use any information relating to the Insurance Contracts financial reporting or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partyaudits, (ii) that may constitute privileged attorney-client communications or attorney work product and in connection with the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver preparation of any such privilege BioMarin Tax Returns or with any BioMarin Tax audits, (iii) if in connection with any Proceeding or investigation relating to the provision Transferred Assets or the Products, (iv) any inspection of access to such document (or portion thereof) or information, as determined by such partyBioMarin’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants facilities by a Governmental Body or (v) in connection with such access. If so reasonably requested any required regulatory filing or reporting obligation or governmental inquiry relating to the Transferred Assets or the Products; provided, that BioMarin shall reimburse Merck Serono or its Affiliates, as applicable, for all reasonable and necessary out-of-pocket costs and expenses, as well as its internal personnel costs at the FTE Rate, in each case incurred by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and Merck Serono or its Affiliates in connection with respect to any such request. Merck Serono may redact any information provided that does not relate to such other party the Transferred Assets or the Products, and any access of BioMarin or its representatives pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 6.01(b) shall be subject conducted in a manner as not to unreasonably interfere with the operation of Merck Serono or its Affiliates. In addition to the applicable provisions foregoing, as reasonably requested by BioMarin during the period commencing on the Agreement Date and ending 75 days after the Transfer Time, in connection with BioMarin’s preparation of Section 5.3its pro forma financial statements required by Form 8-K, Merck Serono shall provide BioMarin and its Affiliates reasonable assistance related to the Transferred Assets and Products as reasonably necessary for BioMarin to prepare such financial statements.
Appears in 2 contracts
Sources: Termination and Transition Agreement (Biomarin Pharmaceutical Inc), Termination and Transition Agreement (Biomarin Pharmaceutical Inc)
Access and Information. (a) During the period between from the Contract Date date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 11.1 or the Merger Closing Date(the “Interim Period”), subject to Section 8.16, the Company shall give, and shall cause its Representatives to give, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur Representatives, at reasonable times during normal business hours and at reasonable intervals and upon reasonable prior notice advance notice, reasonable access to Sellerall offices and other facilities and to all employees, properties, Contracts, books and records, financial and operating data and other similar information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Target Companies, as Purchaser or its Representatives may reasonably request regarding the Target Companies and their respective businesses, assets, Liabilities, financial condition, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any) in each case, if the financial statements or other documents already exist), and cause each of the Representatives of the Company to reasonably cooperate with Purchaser and its Representatives in their investigation; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller its Representatives shall cooperate conduct any such activities in implementing the provisions of this Section 5.2 so such a manner as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business or operations of Seller or its Affiliates.
the Target Companies. Each of Purchaser, Pubco and Merger Sub hereby agrees that, during the Interim Period, it shall not contact any employee (c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(Bother than executive officers), in connection with customer, supplier, distributor or other material business relation of any Target Company regarding any Target Company, its business or the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances transactions contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Ancillary Documents without the servicing prior written consent of the BusinessCompany (such consent not to be unreasonably withheld, conditioned or delayed). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding Notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor the Company shall not be required to provide access to any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject prohibited from being disclosed pursuant to the terms of a non-disclosure written confidentiality agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer disclosure of whichwhich would violate any Law, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege.
(b) During the Interim Period, subject to Section 8.16, each of Purchaser, Pubco and Merger Sub shall give, and shall cause its Representatives to give, the Company and its Representatives, at reasonable times during normal business hours and at reasonable intervals and upon reasonable advance notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, books and records, financial and operating data and other similar information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to Purchaser, as the Company or its Representatives may reasonably request regarding Purchaser and its business, assets, Liabilities, financial condition, operations, management, employees and other aspects (including unaudited quarterly financial statements, including a consolidated quarterly balance sheet and income statement, a copy of each material report, schedule and other document filed with or received by a Governmental Authority pursuant to the requirements of applicable securities Laws, and independent public accountants’ work papers (subject to the consent or any other conditions required by such accountants, if any) in each case, if the provision financial statements or other documents already exist), and cause each of access Purchaser’s Representatives to reasonably cooperate with the Company and its Representatives in their investigation; provided, however, that the Company and its Representatives shall conduct any such document (activities in such a manner as not to unreasonably interfere with the business or portion thereof) or informationoperations of Purchaser. Notwithstanding the foregoing, as determined by such party’s counsel, would reasonably Purchaser shall not be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts required to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party (i) that is prohibited from being disclosed pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions terms of Section 5.3a written confidentiality agreement with a third party, (ii) the disclosure of which would violate any Law, or (iii) the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege.
Appears in 2 contracts
Sources: Business Combination Agreement (Vertical Aerospace Ltd.), Business Combination Agreement (Broadstone Acquisition Corp.)
Access and Information. (a) During With respect to each Subject Company, from the period between the Contract Date and date hereof until the Closing Dateat which such Subject Company is sold, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant subject to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedapplicable Law, howeverParent, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate not unreasonably disruptive to MONY or the Business; (ii) allow Purchaser to interview business and employees of Parentsuch Subject Company, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide (i) afford Purchaser and its Affiliates, subject to any confidentiality restrictions, reasonable access during normal business hours upon reasonable advance notice to the books and records and other documents of the Subject Company and assets, properties and senior management and personnel of such Subject Company and its Affiliates, agents and auditors, and (ii) promptly furnish, or cause to be furnished, to Purchaser such technical, financial and operating data and other information (or copies thereof) with respect to such Subject Company, as may from time to time be reasonably requested by Purchaser, in each case, to the extent reasonably required by Purchaser to ensure an orderly and efficient transition of (including for the purposes of retaining personnel (including Key Personnel) of or related to) such Subject Company to Purchaser, to prepare for the Closing relating to such Subject Company, any financing contemplated by Section 5.14 and to facilitate the satisfaction of the conditions to the Closing relating to such Subject Company under Article VI; provided, however, that in no event shall Purchaser have access to any information (i) that relates solely to any portion of the business of Parent or its Affiliates that is not being transferred pursuant to this Agreement or (ii) in Parent's reasonable determination, the disclosure of which would violate applicable Law, or could affect any legal privilege. In the event that disclosing information would violate any obligation of Parent or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Parent shall make such information available if Purchaser delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Parent. No information provided to or obtained by Purchaser pursuant to this Section 5.5(a) or otherwise obtained after the execution of this Agreement shall limit or otherwise affect the remedies available hereunder to Purchaser (including Purchaser's right to seek indemnification pursuant to Section 8.2), or the representations or warranties of, or the conditions to the Affiliated Distributors that are parties obligations of, the Parties hereto.
(b) Following the first Closing hereunder until the sixth (6th) anniversary of such Closing, to the Distribution Agreementsextent permitted by applicable Law, Purchaser agrees to provide (or cause its Affiliates to provide) Parent with all necessary access to all books and records and other documents that Purchaser has acquired pursuant to this Agreement and to its Representatives to the extent that such access is reasonably required by Parent or any of its Affiliates and is not unreasonably disruptive to the business and employees of Purchaser and its Affiliates, (i) to prepare any required financial statements, Tax filings or regulatory filings of Parent in accordance respect of periods ending on or prior to any Closing, (ii) to comply with the terms of the Distribution Agreementsany Transaction Document, as any applicable Law or request of any Government Authority, (iii) to defend or prosecute any judicial, arbitral or regulatory proceeding to which Parent or any of its Affiliates is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect a party relating to the Insurance Contractsbusiness and affairs of any Subject Company prior to any Closing or (iv) in connection with any claim for indemnity made under or pursuant to this Agreement, and none in each case, subject in the case of any Confidential Information of Purchaser or any of its Affiliates shallto Parent and its Representatives agreeing to maintain the confidentiality of such information; provided, whether directly however, that in no event shall Parent have access to any information the disclosure of which, based on advice of Purchaser's counsel, or indirectlyin Purchaser's reasonable determination, support would violate applicable Law or sponsor a program could destroy any legal privilege. All such information made available to Parent under this Section 5.5(b) shall be deemed Confidential Information and shall be subject to Section 5.6 (including Section 5.6(c)). In the event that is intended disclosing information would violate any obligation of Purchaser or would reasonably be expected to result in the replacement any of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record its Affiliates with respect to confidentiality, the Business requested Parties shall reasonably cooperate so the information might be made available in a redacted format. Purchaser agrees to (or to cause its Affiliates to) retain and preserve all books and records and all other documents that it and its Affiliates acquire pursuant to this Agreement in accordance with Purchaser's internal document retention policies.
(c) Following the first Closing hereunder until the sixth (6th) anniversary of such Closing, to the extent permitted by any Affiliated Distributor that is a party applicable Law, Parent agrees to a Distribution Agreement; provided provide (or cause its Affiliates to provide) Purchaser with all necessary access to all books and records and other documents of Parent and to its Representatives to the extent that such requested change would access is reasonably required by Purchaser or any of its Affiliates and is not violate Applicable Law unreasonably disruptive to the business and employees of Parent and its Affiliates, (i) to prepare any required financial statements, reports (including servicer or investor reports), Tax filings or regulatory filings of Purchaser, including with respect to any Securitization Transaction, in respect of periods ending on or prior to any Closing, (ii) to comply with the terms of any Contract Transaction Document, any applicable Law or request of any Government Authority, (iii) to defend or prosecute any judicial, arbitral or regulatory proceeding to which Purchaser or any of its Affiliates (including MONYwhich, as of and after a Closing, shall include any Subject Company transferred at such Closing) is a party. Purchaser shall not honor party relating to the request business and affairs of the applicable Target Business Segment prior to such Closing or (iv) in connection with any claim for indemnity made under or pursuant to this Agreement, in each case, subject in the case of any other Person to change the servicer or broker Confidential Information of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser Parent or any of its Affiliates to Purchaser and its Representatives agreeing to maintain the confidentiality of such information; provided, however, that in no event shall Purchaser have access to any information the disclosure of which, based on advice of Parent's counsel, or in Parent's reasonable determination, would violate applicable Law or could destroy any legal privilege. All such information made available to Purchaser under this Section 5.5(c) shall be deemed Confidential Information and shall be subject to Section 5.6 (including MONY) is a party.
(e) Except as set forth in Section 5.6(c)). In the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each event that disclosing information would violate any obligation of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Lawrespect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format. Parent agrees to (or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating ) retain and preserve all books and records and all other documents that it and its Affiliates transfer to the Business only for the purpose of complying, or causing its applicable Affiliates Purchaser pursuant to comply, with their respective obligations under this Agreement in accordance with Parent's internal document retention policies.
(d) From the date hereof until the applicable Closing, Parent shall provide to Purchaser copies of all servicer and the Distribution Agreements (including security holder reports required to be delivered by any purpose relating to compliance by ParentSubject Company, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective its Affiliates, mayunder each Securitization Transaction, from and after within five Business Days following the Contract Date or as promptly thereafter as date such report is reasonably practicable, include any information relating required to be delivered under the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractapplicable Securitization Instruments.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstandingWithin thirty (30) days of the date hereof, the party granting access may withhold any document (or portions thereof) or information Parent shall make available to Purchaser complete copies of (i) that is subject all material Contracts related to the terms of a non-disclosure agreement with a third partyMaterial Indebtedness, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver any Contract for employment of any individual or firm on a full-time, part-time or consulting or other basis providing annual compensation in excess of $300,000, to the extent such privilege or Contract is in the possession of Parent, (iii) if the provision a list of access to such document each Insurance Policy not set forth on Section 3.17 of Parent's Disclosure Letter and (or portion thereofiv) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation a list of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this all Scheduled Intellectual Property not listed on Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions 3.14(a) of Section 5.3Parent's Disclosure Letter.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (General Motors Financial Company, Inc.), Purchase and Sale Agreement (General Motors Co)
Access and Information. (a) During the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination Each of the Books Sellers shall afford to the Purchaser and Records as Purchaser may reasonably request. Any investigationto the Purchaser's financial advisors, examination or interview by Purchaser of employees of any of Seller legal counsel, accountants, consultants, financing sources, and its Affiliates or other authorized representatives access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable without material disruption to the Business throughout the period prior notice to Sellerthe Closing Date to all its books, documents, records, properties, plants, and personnel that relate to the Business and, during such period, shall furnish as promptly as practicable to the Purchaser (a) a copy of each report, schedule, and other document filed or received by them pursuant to the requirements of federal or state securities laws and (b) all other information as the Purchaser reasonably may request in furtherance of the Contemplated Transactions; providedno investigation pursuant to this Section 5.2 shall affect any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Contemplated Transactions. Without limiting the foregoing, however(i) Purchaser and its representatives shall be given such access in order to conduct interviews, assessments, studies and procedures (including, without limitation, sampling) which Purchaser determines is reasonably necessary to confirm that such actions by Purchaser shall it will not unreasonably interfere with incur any liabilities, costs or expenses under Environmental Laws as a result of its ownership of the normal Assets or operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain have a right to designate any of Purchaser's employees and make available representatives as a transition team which may work from Sellers' premises in order to Seller facilitate the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary orderly transfer of the Closing Date, provided, that Business to Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreementsthis Agreement. Such transition team shall be given full access to Sellers' management and other employees, as is necessary to enable including through attendance by such Affiliated Distributors to provide the Independent Distributors management and employees at meetings with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; transition team at Purchaser's headquarters (provided that such requested change would attendance does not violate Applicable Law or require more than reasonable travel expenses and does not unreasonably interfere with the terms operation of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller . Sellers shall, and shall cause its Affiliates their auditors to, use any provide all information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering regarding the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process being purchased hereunder that is designed or intended required to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in Purchaser's filings with the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants SEC in connection with such access. If so reasonably requested the Contemplated Transactions, including by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access providing relevant financial statements and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3work papers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Time Warner Telecom Inc), Asset Purchase Agreement (GST Telecommunications Inc)
Access and Information. (a) During From the period between date of this Agreement until the Contract earlier of the Closing Date or termination of this Agreement in accordance with its terms, subject to the terms of this Section 6.1 and the Closing Dateconfidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law) (as determined by Seller in its reasonable discretion in the case of clause (i) below or by Buyer in its reasonable discretion in the case of clause (ii) below), Purchaser (i) Seller shall be entitledand shall cause its Affiliates and Representatives to (A) afford Buyer and its Representatives reasonable access, through its during regular business hours and upon reasonable advance notice, to the Employees, the Books and Records, the Contracts, the assets and properties of the Transferred Entities and the employees and representatives Representatives of Seller who have knowledge relating directly to the BGI Business, in each case, in order that Buyer and at its own expense, Representatives shall have the reasonable opportunity to make such examination of investigation as Buyer and its Representatives shall reasonably require in connection with any matters relating to the Books Transferred Entities and Records the transactions contemplated by this Agreement, (B) furnish, or cause to be furnished, to Buyer and its Representatives any financial and operating data and other information that is reasonably available to Seller and its Representatives with respect to the Transferred Entities or the BGI Business as Purchaser Buyer and its Representatives from time to time may reasonably request. Any investigation, examination or interview by Purchaser of (C) instruct the Employees and the employees of any and Representatives of Seller and its Affiliates or access pursuant who have knowledge relating directly to any the BGI Business to cooperate reasonably with Buyer and its Representatives in their investigation of the provisions BGI Business and any matters relating thereto and to the transactions contemplated by this Agreement and (D) cooperate reasonably with Buyer in connection with any approvals, applications, waivers, consents or any other request for information or requirements of this Section 5.2 any Government Entity to be made, filed or obtained by Buyer, and (ii) Buyer shall be conducted or occur at and shall cause its Affiliates and Representatives to (A) afford Seller and its Representatives reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to information relating to Buyer in connection with such investigation as Seller and its Representatives shall reasonably require in connection with any matters relating to the transactions contemplated by this Agreement, (B) furnish, or cause to be furnished, to Seller and its Representatives any financial and operating data and other information that is reasonably available to Buyer and its Representatives with respect to Buyer as Seller and its Representatives from time to time may reasonably request, (C) instruct the employees and Representatives of Buyer and its Affiliates who have knowledge relating to Buyer to cooperate reasonably with Seller and its Representatives in their investigation of Buyer and any matters relating thereto and to the transactions contemplated by this Agreement and (D) cooperate reasonably with Seller in connection with any approvals, applications, waivers, consents or any other request for information or requirements of any Government Entity to be made, filed or obtained by Seller; provided, however, that in no event shall any party have access to any information if allowing that access (x) based on advice of counsel to the party that is providing access, information or cooperation pursuant to this Section 6.1(a) (the “Providing Party”), would reasonably be expected to result in the loss of attorney-client privilege (provided that the Providing Party and its counsel shall use commercially reasonable efforts to enter into such actions by Purchaser shall joint defense agreements or other arrangements, as appropriate, so as to allow for such disclosure in a manner that does not unreasonably interfere with result in the normal operation loss of attorney client privilege), or (y) would in the reasonable judgment of the Business. Notwithstanding Providing Party (A) result in the disclosure of any other provisions material trade secrets, unless the applicable information is reasonably necessary for integration purposes and then only if it does not involve the furnishing of information about sensitive fiduciary matters, or (B) violate any obligation of the Providing Party with respect to confidentiality so long as, with respect to confidentiality, the Providing Party has made commercially reasonable efforts to safeguard the confidentiality of any such information and minimize any reasonable concerns in connection therewith including seeking to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; provided, further, that with respect to clauses (x) and (y) of this Section 5.26.1(a), Purchaser and Seller shall cooperate in implementing the provisions event that any such clauses prevents the providing of information pursuant to this Section 5.2 6.1(a), the Providing Party shall use commercially reasonable efforts to develop an alternative to providing such information so as not to prevent address such matters that is reasonably acceptable to the receiving party. All requests for information made pursuant to this Section 6.1(a) shall be directed in writing to an executive officer of Seller or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofBuyer, as the case may be, or such Person or Persons as may be designated by Seller or Buyer, as the case may be.
(b) Following Between the date hereof and the earlier of the Closing DateDate and the date on which this Agreement is terminated in accordance with its terms, subject to the terms of this Section 6.1(b) and the confidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law), Seller shall provide to Buyer on a monthly basis as promptly as they become available (A) copies of all regularly prepared monthly financial statements and reports on the Transferred Entities or the BGI Business, as appropriate, including statements of operations and balance sheets, (B) updates with respect to the obtaining of consents in connection with the transactions contemplated hereby, including such consents contemplated by Section 6.6, Section 6.9 and Section 6.10, (C) an updated Base Revenue Schedule, and (D) a calculation of Closing Revenue Run-Rate, Closing Adjustment Revenue Run-Rate, Closing Adjustment ETF Revenue Run-Rate and the Revenue Run-Rate Adjustment Amount as of the end of each month and such supporting documentation relating to the foregoing and the Initial Base Revenue Schedule as Buyer may reasonably request including a schedule with reasonable detail supporting the determinations of each of Parent the elements of the items set forth in clauses (C) and (D) (it being understood that the information provided under clauses (C) and (D) will be provided exclusively pursuant to the procedures previously agreed between the parties). In addition, subject to applicable Law, Seller shall provide Buyer with access to all Books and Records and personnel reasonably necessary for Buyer’s financial reporting obligation, and Seller shall, at Buyer’s reasonable request, engage appropriate consultants at Buyer’s cost and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is Buyer reasonably deems necessary for its financial reporting obligation related to Seller for periods following the purpose of determining whether or not an Insurance Contract has met Closing. In the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent event that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at be on or prior to the Closing. Access to such employees and records December 1, 2009, Seller shall not unreasonably interfere bear all of Buyer’s reasonable out-of-pocket costs in connection with the business operations of Seller or its Affiliatesactivities set forth in the preceding sentence (and shall, in such circumstance, refund any amounts previously paid by Buyer).
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating permitted by applicable Law (as determined by Buyer in its reasonable discretion), Buyer agrees to periods provide (or cause its Subsidiaries and Representatives to provide) Seller and its Representatives with reasonable access, during regular business hours and upon reasonable advance notice, to the Books and Records and any other documents that Buyer acquires pursuant to this Agreement and to Buyer’s employees and Representatives, in each case, to the extent that such access is related to any Transferred Entity or the BGI Business during the period prior to the Closing Date and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records otherwise necessary for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information Representatives to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance comply with the terms of the Distribution Agreementsthis Agreement, any applicable Law or any request of a Government Entity; provided, however, that any such access and review shall be granted and conducted in such manner as is necessary not to enable such Affiliated Distributors to provide the Independent Distributors interfere unreasonably with the information necessary to service customers with respect to conduct of the Insurance Contracts, and none business of Purchaser Buyer or any of its Affiliates shallAffiliates; provided, whether directly further, that in no event shall Seller or indirectlyits Representatives have access to any information if allowing that access (x) based on advice of counsel of Buyer, support information or sponsor a program that is intended or cooperation pursuant to this Section 6.1(c), would reasonably be expected to result in the replacement loss of attorney-client privilege (provided that the Distributors Buyer and its counsel shall use commercially reasonable efforts to enter into such joint defense agreements or other arrangements, as servicers or brokers of record appropriate, so as to allow for the Insurance Contracts. Purchaser shall promptly make any changes such disclosure in a manner that does not result in the servicer loss of attorney client privilege) or broker (y) would in the reasonable judgment of record Buyer violate any obligation of Buyer with respect to confidentiality so long as Buyer has made commercially reasonable efforts to obtain a waiver regarding the Business requested by any Affiliated Distributor that is a possible disclosure from the third party to a Distribution whom it owes an obligation of confidentiality. Notwithstanding anything in this Agreement to the contrary, Seller shall have the right to access the Books and Records and other documents that Buyer acquires pursuant to this Agreement; provided , even if (A) based on advice of counsel of Buyer, Buyer believes that providing such requested change access pursuant to this Section 6.1(c) would not reasonably be expected to result in the loss of attorney-client privilege or (B) Buyer believes that providing such access pursuant to this Section 6.1(c) would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record obligations with respect to the Businessconfidentiality, unless in the opinion each case of Purchaser’s counsel such refusal to honor such request (A) and (B), if Seller or its Affiliates would violate Applicable any Law or the terms other requirement of any Contract Government Entity for failing to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of have such access pursuant to this Section 5.2(e) or 6.1(c). Seller shall bear any out-of-pocket costs incurred in Section 5.14(f), between connection with the Contract Date and provision of such access by Buyer following the Closing Date. In addition to the other obligations set forth herein, each of Parent and Seller Buyer shall, and shall cause its Affiliates Representatives to, use any information relating to the Insurance Contracts or the holders retain and preserve all of the Insurance Contracts only for the purpose of servicing customers with respect Books and Records and all other documents that Buyer acquires pursuant to the Insurance Contracts and operating and administering the Business in the ordinary course and this Agreement in accordance with past practices its customary retention policy.
(including any purpose relating to compliance by Parentd) Buyer undertakes, Seller or any for a period of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following five years from the Closing Date, to:
(i) Purchaser shallkeep in a safe place and with the same security measures that apply to Buyer’s own secure documentation (which Buyer confirms are appropriate for a comparable business as carried on by Buyer) the Relevant Documentation within its possession to ensure that Relevant Documentation is maintained for a period of five (5) years after the Closing Date;
(ii) upon written request from the Seller, the Buyer will use commercially reasonable efforts, subject to the capabilities of the Transferred Entities acquired on the Closing Date, to provide the document or copy of the document within:
(A) five Business Days for information less than one year old;
(B) 10 Business Days for information between one and three years old; and
(C) 15 Business Days for information between three and five years old.
(iii) give to Seller a copy of any document included in the Relevant Documentation within five Business Days from the receipt of a written request from Seller. Seller agrees, solely with respect to Buyer’s obligations under this Section 6.1(d) and without affecting any other obligation of Buyer in this Agreement, that it shall only request copies of Relevant Documentation in connection with a bona fide obligation to respond to a request from a competent, Government Entity to disclose Relevant Documentation, or information included in such Relevant Documentation, and undertakes, provided it is in Seller’s reasonable opinion practicable and permitted by Law, to provide evidence of such request in a form reasonably satisfactory to Buyer at the time the request for the Relevant Documentation is made (and, if it is not practicable or permitted, shall cause instead provide a certificate signed on behalf of Seller confirming that such request is in response to a bona fide regulatory, governmental, legal or judicial requirement). Seller shall reimburse Buyer for all reasonable out of pocket costs incurred as a result of the need to comply with the requirements in this paragraph which are in excess of what Buyer would otherwise have incurred. Without prejudice to Buyer’s obligation to maintain appropriate security measures pursuant to clause (i), nothing herein shall require Buyer to create, alter or modify any of its Affiliates toinformation technology systems in order to comply with this Section 6.1(d); it being understood that the foregoing shall not affect Buyer’s obligation to maintain Relevant Documentation for five years.
(e) Notwithstanding anything in this Agreement to the contrary, use (except for Section 6.1(d)(i)) Seller shall be permitted to retain duplicate copies of the Books and Records and any information other documents of or otherwise relating to the Insurance Contracts Transferred Entities or the holders of the Insurance Contracts only BGI Business for the purposes of servicing customers with respect legal and record keeping purposes; it being understood that any information retained by Seller pursuant to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e6.1(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating subject to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractSection 6.18(a) (Confidentiality).
(f) Anything Promptly following receipt of applicable clearances under applicable Antitrust Laws or the expiration of any applicable waiting period under applicable Antitrust Laws, Seller shall use reasonable best efforts to provide to Buyer an unredacted list of all Contracts entered into by Seller or its Subsidiaries and in effect on the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information date of this Agreement (i) that is subject to would have been included in Section 4.13(a) of the terms of a non-disclosure agreement with a third partySeller’s Disclosure Schedules if any $10,000,000 threshold therein had been $2,500,000, (ii) that may constitute privileged attorney-client communications index licenses and Investment Advisory Arrangements, in each case, that is reasonably expected to provide for payments by or attorney work product and to the transfer Transferred Entities in excess of which$2,500,000 in 2009, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision that are index licenses containing change of access to such document control provisions or (or portion thereofiv) for which a description is provided under Section 4.13(e) or information, as determined by such partySection 4.13(f) of the Seller’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3Disclosure Schedules.
Appears in 2 contracts
Sources: Stock Purchase Agreement (BlackRock Inc.), Stock Purchase Agreement (Barclays Bank PLC /Eng/)
Access and Information. (a) During Upon reasonable notice and subject to applicable laws relating to the period between the Contract Date exchange of information, SSE shall (and the Closing Dateshall cause SSE’s Subsidiaries to) afford NVSL and its representatives (including, Purchaser shall be entitledwithout limitation, through its employees officers and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller NVSL and its Affiliates or affiliates and counsel, accountants and other professionals retained by NVSL) such reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and upon reasonable prior notice work papers of independent auditors), contracts, properties, personnel and to Sellersuch other information relating to SSE and SSE’s Subsidiaries as NVSL may reasonably request; provided, however, that no investigation pursuant to this Section 5.3 shall affect or be deemed to modify any representation or warranty made by SSE in this Agreement and provided, further, that such actions by Purchaser access shall not unreasonably interfere with be subject to permissions from such Governmental Entities as may be required. Neither SSE nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the normal operation rights of its customers, jeopardize the attorney-client privilege of the Business. Notwithstanding institution in possession or control of such information or contravene any other provisions law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Section 5.2, Purchaser Agreement. The parties will make appropriate and Seller shall cooperate reasonable substitute disclosure arrangements under circumstances in implementing which the provisions restrictions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofthe preceding sentence apply.
(b) Following From the Closing Datedate hereof until the Effective Time, each of Parent and Seller SSE shall, and shall cause its Affiliates SSE’s Subsidiaries to: , promptly provide NVSL with (i) allow Purchasera copy of each report filed with a Government Regulator, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser a copy of each periodic report to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose its senior management and all materials relating to the Businessits business or operations furnished to its Board of Directors, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary a copy of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records each press release made available to the extent that electronic or paper copies or originals of such books public and records are delivered to Purchaser or any of (iv) all other information concerning its Affiliates (including MONY) at or prior to the Closing. Access to such employees business, properties and records shall not unreasonably interfere with the business operations of Seller or its Affiliatespersonnel as NVSL may reasonably request.
(c) Following the Closing Date, Purchaser shallNVSL will not, and shall will cause its Affiliates representatives not to: , use any information obtained pursuant to this Section 5.3 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Subject to the requirements of applicable law and the Confidentiality Agreement, NVSL will keep confidential, and will cause its representatives to keep confidential, all information and documents obtained pursuant to this Section 5.3 unless such information (i) allow Sellerwas already known to NVSL or an affiliate of NVSL, upon reasonable prior notice and during normal business hoursother than pursuant to a confidentiality agreement or other confidential relationship, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make becomes available to Seller NVSL or an affiliate of NVSL from other sources not known by such party to be bound by a confidentiality agreement or other obligation of secrecy, (iii) is disclosed with the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller approval of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser SSE or its Affiliates(iv) is or becomes readily ascertainable from published information or trade sources.
(d) Following From and after the Closing Datedate hereof, Purchaser shall, representatives of NVSL and SSE shall cause meet on a regular basis to discuss and plan for the conversion of SSE’s and its Affiliates to, provide such information Subsidiaries’ data processing and related electronic informational systems to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance those used by NVSL and its Subsidiaries with the terms goal of conducting such conversion simultaneously with the consummation of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyBank Merger.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shallSSE shall give notice, and shall cause its Affiliates toSSE Bank to give notice, use any information relating to the Insurance Contracts or the holders a designee of NVSL, and shall invite such person to attend all regular and special meetings of the Insurance Contracts only for the purpose Board of servicing customers with respect Directors of SSE and SSE Bank. Such designees shall have no right to the Insurance Contracts vote and operating shall not attend sessions of board and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, committees during which there is being discussed (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of matters involving this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partyAgreement, (ii) information or material that may constitute privileged attorney-client communications SSE or attorney work product and the transfer SSE Bank is required or obligated to maintain as confidential under applicable laws or regulations or policies or procedures of whichSSE or SSE Bank, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if pending or threatened litigation or investigations if, in the provision opinion of access counsel to SSE, the presence of such document (designees would or portion thereof) might adversely affect the confidential nature of or information, as determined by such party’s counsel, would reasonably be expected any privilege relating to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly providematters being discussed, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3(iv) matters involving an Acquisition Proposal.
Appears in 2 contracts
Sources: Merger Agreement (Naugatuck Valley Financial Corp), Merger Agreement (Southern Connecticut Bancorp Inc)
Access and Information. (a) During the period between the Contract Date Interim Period, and the Closing Datein addition to and without limitation of Parent’s rights pursuant to Section 5.2, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination each of the Books Company and Records Parent shall (i) give the other party and such party’s Representatives reasonable access to its offices, properties, books and records, upon the reasonable request of the other party, (ii) furnish to the other party and such party’s Representatives such financial and operating data and other information relating to the other party as Purchaser such Persons may reasonably requestrequest and (iii) instruct its Representatives to cooperate with the other party in its investigation and due diligence review of the Company and Parent, as applicable. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access investigation pursuant to any of the provisions of this Section 5.2 5.8(a) shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that in such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so manner as not to prevent or interfere unreasonably with the conduct of the business of the Company and Parent’s and Seller’s compliance with Section 5.1 hereof, as applicable.
(b) Following Without limiting the Closing Dategenerality of the foregoing, each of during the Interim Period, the Company shall permit Parent and Seller its Representatives to contact the Company’s accountants, auditors, and employees, and the Company shall, and shall use its commercially reasonable efforts to cause such accountants, auditors and employees to, discuss, reasonably cooperate and provide all material information, documentation, data and materials (whether in electronic form of otherwise) relating to the Company that is in the control or possession of the Company or its Affiliates to: (i) allow Purchaseror Representatives as Parent may reasonably request, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of including any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as information that is reasonably necessary required for the purpose preparation of determining whether or financial statements of Parent that include financial and operating data relating to the Company; provided that such discussions, cooperation and provision do not an Insurance Contract has met interfere unreasonably with the diversification requirements of Section 817(h) conduct of the Code)business of the Company.
(c) Notwithstanding anything herein to the contrary in this Section 5.8, including the preparation no access or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only contemplated by this Section 5.8 shall be permitted to the extent that such records of Parent, Seller it would require the Company or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller Parent or any of their respective Affiliates for Subsidiaries, as applicable, to waive the attorney-client privilege or attorney work product privilege, or violate any reasonable purpose relating applicable Law; provided, that each the Company and Parent (i) shall be entitled to withhold only such information that may not be provided without causing such violation or waiver, (ii) shall provide to the Businessother party all related information that may be provided without causing such violation or waiver (including, including to the preparation or examination extent permitted, redacted versions of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Codeany such information), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain shall enter into such records for Purchaser’s examination effective and copying until at least the sixth anniversary of the Closing Date, provided, that Seller appropriate joint-defense agreements or other protective arrangements as may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting accessCompany or Parent, as applicable, in order that all such information may be provided to the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to without causing such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3violation or waiver.
Appears in 2 contracts
Sources: Merger Agreement (Neumora Therapeutics, Inc.), Merger Agreement (Neumora Therapeutics, Inc.)
Access and Information. (a) During From the period between date hereof until the Contract Date Closing, subject to reasonable rules and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any regulations of Seller and any applicable Laws, Seller shall (and ROI shall cause Seller to)
(i) afford Buyer and its Affiliates representatives (including representatives of entities providing or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times arranging financing for Buyer) access, during normal regular business hours and upon reasonable prior notice advance notice, to Seller; providedthe Employees, howeverand the assets, that such actions by Purchaser shall not unreasonably interfere with the normal operation books and records of the Business, (ii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the Business as Buyer from time to time reasonably requests, (iii) instruct its counsel and financial advisors to cooperate in a reasonable manner with Buyer in its investigation of the Business, including instructing its accountants to give Buyer reasonable access to their work papers, (iv) provide Buyer and its lenders reasonable access to the books and records of the Business to the extent reasonably necessary for such lenders to complete a customary due diligence investigation with respect to Buyer, (v) cooperate with Buyer and its lenders in such lenders' preparation of security interest documentation and other documents reasonably necessary in order to perfect such lenders' interests in Buyer's assets and properties (including the Transferred Assets) following the Closing, and (vi) provide Buyer and its independent accountants with reasonable access to the books and records of the Business and the Employees, for purposes of completing its accounting and Tax allocations with respect to the Transferred Assets. Notwithstanding any other provisions of No investigation pursuant to this Section 5.2, Purchaser and Seller 5.1(a) shall cooperate in implementing the provisions of alter any representation or warranty given hereunder by Seller. All requests for information made pursuant to this Section 5.2 so 5.1(a) shall be directed to an executive officer of Seller or such Person or Persons as not may be designated by Seller. All information received pursuant to prevent or interfere with Parent’s and Seller’s compliance with this Section 5.1 hereof5.1(a) shall be governed by the terms of the Confidentiality Agreement.
(b) Following the Closing, upon the request of the other party, to the extent permitted by Law and confidentiality obligations existing as of the Closing Date, each of Parent and Seller shallshall grant to Buyer, and its representatives, and Buyer shall cause grant to Seller, and its Affiliates to: (i) allow Purchaserrepresentatives, upon during regular business hours and subject to reasonable prior notice rules and during normal business hours, through its employees and representativesregulations of the granting party, the right, at Purchaser’s expensethe expense of the non-granting party, to examine inspect and make copies of any copy the books, records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for and other documents in the purpose of determining whether or not an Insurance Contract has met granting party's possession pertaining to the diversification requirements of Section 817(h) operation of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing (including books of account, records, files, invoices, correspondence and (B) interview Purchaser’s memoranda, customer and its Affiliates’ employeessupplier lists, in the case of data, specifications, insurance policies, operating history information and inventory records). In no event shall either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY party have access to the extent relating to periods prior to the Closing until at least the sixth anniversary consolidated federal, state or local Tax Returns of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Return on Investment Corp), Asset Purchase Agreement (Return on Investment Corp)
Access and Information. (a) During After the period between the Contract Date date hereof and prior to the Closing Date, Purchaser Sellers shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller permit Buyer and its Affiliates or access pursuant authorized representatives to any of the provisions of this Section 5.2 shall be conducted or occur at have reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to Sellerthe properties, inventory (as individually packaged, but not the contents of such packages), Contracts, books and records of the Companies, including to all batch records for inventory of finished products held by each Company, and to the officers and operating level employees, auditors, investment bankers, counsel, environmental consultants and other representatives of the Companies, in each case, as Buyer shall from time to time reasonably request; provided, however, that any such actions by Purchaser access shall be permitted (after consultation with the senior management of the Companies) in such a manner as would not unreasonably reasonably be expected to interfere with the normal operation of the JRH Business; provided, further, that Buyer shall reimburse Sellers promptly for all reasonable out-of-pocket costs and expenses incurred by Sellers or the Companies in complying with any such request by or on behalf of Buyer. Notwithstanding the foregoing, Sellers need not disclose to Buyer or its authorized representatives any other provisions information the disclosure of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: which would (i) allow Purchaserviolate applicable Law, upon reasonable prior notice and during normal business hours(ii) result in a breach of attorney-client privilege or similar privilege, through its employees and representatives, (iii) result in the right, at Purchaser’s expense, to examine and make copies disclosure of any records retained by trade secrets of third parties, or (iv) violate any confidentiality or nondisclosure agreement or other agreement or arrangement to which a Seller or any of its Affiliates for is a party.
(b) After the date hereof and prior to the Closing Date, Buyer shall not undertake intrusive environmental sampling on any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)Real Property without the prior written consent of Sellers, including the preparation which shall not be unreasonably withheld. Buyer shall indemnify and hold harmless Sellers from any property damage, loss, cost or examination expense arising out of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating such investigations; provided, however, that with regard to any such pre-Closing samplings or investigations, Buyer shall have no indemnity obligations to the Business extent any such property damage, loss, cost or otherwise, expense is caused by the acts or the conduct omissions of any regulatorySeller or Company and Buyer shall not be responsible for any Hazardous Substance which Buyer did not bring onto the Real Property, customer nor for any and all subsequent releases thereof or other dispute resolution process violations of Laws resulting therefrom. Further, after the date hereof and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of prior to the Closing Date, provided, that Seller may destroy such records in its discretion following Buyer shall not contact any Governmental Entity regarding the third anniversary status of the Closing Date after giving reasonable Companies’ compliance with any Laws without providing Sellers with prior written notice to Purchaser of its intent to destroy contact each such documentsGovernmental Entity and providing Sellers with the reasonable opportunity to participate in any such meeting or discussion and without obtaining the prior written consent of CSL, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records which shall not be unreasonably interfere with the business operations of Seller or its Affiliateswithheld.
(c) Following All Confidential Information provided or obtained pursuant to Section 5.6(a) shall be held by Buyer in accordance with and subject to the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, terms of the books and records Confidentiality Deed, dated August 4, 2004, by Buyer in favor of MONY to CSL (the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B“Confidentiality Agreement”), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing, for so long as such information is retained by Buyer, or any of the Companies (which shall be for a period of at least seven (7) years), Buyer shall permit Sellers and their authorized representatives to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Buyer, to the books, records and personnel relating to the JRH Business prior to the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors extent that are parties such access may be reasonably required in connection with (i) the preparation of Sellers’ Tax Returns or accounting records or with any audits, (ii) any suit, claim, action, proceeding or investigation relating to the Distribution AgreementsJRH Business, in accordance with the terms (iii) any regulatory filing or matter, or (iv) any other valid legal or business purpose of the Distribution AgreementsSellers related to this Agreement and the transactions contemplated hereunder; provided, as is that Sellers shall reimburse Buyer promptly for all reasonable out-of-pocket costs and expenses incurred by Buyer, or the Companies in connection with any such request. The Sellers shall be permitted to retain duplicate copies of records relating to Taxes, including Tax Returns and such other documents that would be helpful or necessary to enable such Affiliated Distributors refer to provide in connection with any Tax audit by the Independent Distributors with IRS or another Tax authority (including, without limitation, the information necessary to service customers with respect to relevant tax authorities in Australia and the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyUK).
(e) Except as set forth in Following the last sentence of this Section 5.2(e) or in Section 5.14(f)Closing, between the Contract Date and the Closing Date, each of Parent and Seller Buyer shall, and shall cause instruct its Affiliates and the Companies’ employees to, use at Sellers’ request, cooperate with Sellers as may be reasonably required in connection with the investigation and defense of any information suit, claim, action, proceeding or investigation relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the JRH Business in the ordinary course and in accordance with past practices (including that is brought against any purpose relating to compliance by Parent, Seller or any of their its respective Affiliates with at any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and time after the Contract Date or as Closing; provided, however, that Sellers shall reimburse Buyer promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered all reasonable out-of-pocket costs and expenses incurred by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of whichBuyer, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants Companies in connection with any such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3request.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Sigma Aldrich Corp)
Access and Information. (a) During Prior to the period between Effective Time, the Contract Date Company shall, and the Closing Dateshall cause its Subsidiaries to, Purchaser shall be entitledupon reasonable notice, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller afford Parent and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at counsel, accountants, consultants and other authorized representatives reasonable times access, during normal business hours hours, to the employees, properties, books and upon reasonable prior notice to Sellerrecords of the Company and its Subsidiaries; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records access shall not unreasonably interfere with the business or operations of Seller the Company and its Subsidiaries and shall not affect the representations and warranties made by the Company in this Agreement. Without limitation of the foregoing, the Company shall cause its officers and employees to (x) furnish such financial and operating data and other information as may be reasonably requested by Parent from time to time and (y) respond to such reasonable inquiries as may be made by Parent from time to time. Prior to their filing, the Company shall furnish as promptly as practicable to Parent a copy of each registration statement, prospectus, report, form and other document (if any) that will be filed by it or any of its AffiliatesSubsidiaries after the date of this Agreement pursuant to the requirements of federal or state securities Laws, The NASDAQ Global Market or the MBCA. All of the requirements of this Section 5.4(a) shall be subject to any prohibitions or limitations of applicable law and shall be subject to the Confidentiality Agreement.
(cb) Following Prior to the Closing DateEffective Time, Purchaser Parent shall, and shall cause its Affiliates Subsidiaries to: (i) allow Seller, upon reasonable prior notice notice, afford the Company and its counsel, accountants, consultants and other authorized representatives reasonable access, during normal business hours, through their respective employees and representativesto the employees, the right to (A) examine and make copiesproperties, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s Parent and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statementsSubsidiaries; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, however, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records access shall not unreasonably interfere with the business or operations of Purchaser or Parent and its Affiliates.
(d) Following the Closing Date, Purchaser shall, Subsidiaries and shall cause its Affiliates to, provide such information to not affect the Affiliated Distributors that are parties to the Distribution Agreements, representations and warranties made by Parent in accordance with the terms this Agreement. All of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence requirements of this Section 5.2(e5.4(b) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms any prohibitions or limitations of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product applicable law and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions Confidentiality Agreement.
(c) Prior to the Effective Time, the Company shall promptly provide Parent with copies of Section 5.3all monthly and other interim financial statements as the same become available. The Company shall also provide Parent with prompt written notice of any investigations by Governmental Entities, or the institution of material litigation (including all litigation relating to the transactions contemplated hereby), and the Company shall keep Parent informed of such events. Parent shall provide the Company with prompt written notice of the institution or, to its knowledge, the threat of litigation relating to the transactions contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Nashua Corp), Merger Agreement (Nashua Corp)
Access and Information. (a) During Upon reasonable notice and subject ---------------------- to applicable laws relating to the exchange of information, BFS agrees to (and shall cause each of its subsidiaries to) afford Dime's officers, employees, counsel, accountants and other authorized representatives (collectively, its "Representatives") reasonable access (together with the right to copy), during ---------------- normal business hours throughout the period between the Contract Date and until the Closing Date, Purchaser to its books, properties, contracts and records (including loan and credit files, tax returns and work papers of independent auditors) and, during such period, shall (and shall cause each of its subsidiaries to) furnish to Dime and its Representatives all information concerning its business, property and personnel as may reasonably be requested and instruct its officers, employees, counsel and accountants to be available for, and respond to reasonable questions of, Dime and its Representatives at reasonable hours and with reasonable notice and to cooperate with Dime in planning for the integration of the business of BFS and its subsidiaries with the business of Dime and its subsidiaries. Neither BFS nor any of its subsidiaries shall be entitledrequired to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of BFS's customers, through its employees and representatives and at its own expense, to make such examination jeopardize the attorney-client privilege of the Books and Records as Purchaser may reasonably requestinstitution in possession or control of such information or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofpreceding sentence apply.
(b) Following Each of Dime and BFS agree that it and its subsidiaries will not, and will cause their Representatives not to, use any nonpublic information obtained from the Closing Dateother party in connection with or relating to this Agreement, the investigation leading up to its execution or the transactions contemplated hereby (including by Dime pursuant to Section 5.5(a)) for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Pending consummation of the transactions herein contem plated, each of Parent Dime and Seller shallBFS agrees that it and each of its subsidiaries will keep confidential, and shall will cause its Affiliates to: Representatives to keep confidential, all nonpublic information and documents so obtained from the other party; provided, that the obligation to -------- keep such information or documents confidential shall not apply to (i1) allow Purchaserany information or document that (A) was already in Dime or BFS's possession prior to the disclosure thereof by the other party, upon reasonable prior notice (B) was then generally known to the public, (C) became known to the public through no fault of Dime or BFS, as the case may be, or (D) was disclosed to Dime or BFS, as the case may be, by a third party not bound by an obligation of confidentiality or (2) disclosures required by law, governmental or regulatory authority. Upon any termination of this Agreement, each party will collect and during normal business hoursdeliver to the other party all nonpublic documents obtained by any of it, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller subsidiaries or any of its Affiliates for any reasonable business purpose their Representatives and then in their possession (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) other than documents of the Codetype described in the proviso to the preceding sentence) and any copies thereof and destroy or cause to be destroyed all notes, memoranda or other documents in the possession of it, its subsidiaries or their Representatives containing or reflecting any nonpublic information obtained from the other party (other than information of the type described in the proviso to the preceding sentence), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only except to the extent that any such records information may be embodied in minutes of Parentthe meetings of such party's Board of Directors or in filings, Seller reports or submissions to or with any Governmental Entity. Promptly after any such termination, each of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating Dime and BFS shall deliver to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating other a certificate signed on its behalf by a senior executive officer to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser effect of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere compliance with the business operations agreements of Seller or its Affiliatesit set forth in the preceding sentence.
(c) Following Without in any way limiting the provisions of Section 5.5(a), BFS shall provide to Dime within 30 days of the end of each calendar month between the date hereof and the Closing Date, Purchaser shallDate (1) consolidated financial statements (including a balance sheet and income statement) as of, and shall cause its Affiliates to: (i) allow Sellerfor the period ended, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeeson such month-end, in the case of either clause (i)(A) or (i)(B)form in which such statements are prepared for use by BFS's management, in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii2) maintain such books and records for Seller’s examination and copying in the circumstances contemplated other information customarily prepared by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser BFS as may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliatesbe reasonably requested by Dime.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shallNo investigation, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant 5.5 or otherwise, shall affect or be deemed to this Section 5.2 shall be subject to the applicable provisions of Section 5.3modify any representation or warranty herein.
Appears in 2 contracts
Sources: Merger Agreement (BFS Bankorp Inc), Merger Agreement (Gould Investors L P)
Access and Information. (a) During For the period between the Contract Date and six months following the Closing Date, Purchaser Seller shall be entitledprovide, through its employees and representatives and at its own expenseshall cause Seller Affiliates to provide, to make such examination of the Books Parent and Records as Purchaser may reasonably request. Any investigationits officers, examination or interview by Purchaser of employees of any of employees, accountants, counsel and other representatives, and Parent shall provide, and shall cause Parent Affiliates to provide, to Seller and its Affiliates officers, employees, accountants, counsel and other representatives, upon reasonable request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege, privacy or legal or contractual third party confidentiality obligation; provided, however, that in the event that access is limited or restricted pursuant to this parenthetical, Seller and Seller Affiliates, or Parent and Parent Affiliates, respectively, shall use reasonable commercial efforts to make alternative accommodations to afford access in a manner that does not jeopardize any attorney-client privilege or legal or contractual third party confidentiality obligation), reasonable access for inspection and copying of information existing as of the provisions Closing Date, in each case, solely to the extent solely relating to the Business, the Transferred Assets, the Assumed Liabilities or the Rehired Employees and shall otherwise use commercially reasonable efforts to reasonably assist and cooperate with Parent, in each case, in Parent’s, or Seller, in each case, in Seller’s, respectively, preparation of historical or pro forma financial statements related to the Business for purposes of complying, or preparing to comply, with any rules or regulations of the Securities and Exchange Commission, including all such historical depreciation and amortization expenses of the Business as may be required by the Securities and Exchange Commission as part of such historical or pro forma financial statements. The access to files, books and records contemplated by this Section 5.2 7.8 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to such reasonable limitations as Seller or Parent, respectively, may impose to preserve the applicable provisions confidentiality of Section 5.3information contained therein.
Appears in 1 contract
Access and Information. (a) During the period between from the Contract Date date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 10.1 or the Closing Date(the “Interim Period”), subject to Section 8.13, each of the Company, Pubco and Merger Sub shall give, and shall cause its Representatives to give, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur Representatives, at reasonable times during normal business hours and upon reasonable prior notice notice, reasonable access to Sellerall offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other then existing information, of or pertaining to Pubco, Merger Sub or the Target Companies, as Purchaser or its Representatives may reasonably request regarding Pubco, Merger Sub or the Target Companies and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects and cause each of the Representatives of the Company, Pubco and Merger Sub to reasonably cooperate with Purchaser and its Representatives in their investigation; provided, however, that Purchaser and its Representatives shall conduct any such actions by Purchaser shall activities in such a manner as not to unreasonably interfere with the normal operation business or operations of Pubco, Merger Sub or the Target Companies, including conducting any invasive or intrusive investigations; provided, further, that Purchaser and its Representatives shall not, without the prior written consent of the BusinessCompany (not to be unreasonably withheld, delayed or conditioned), make direct inquiries of Persons having business relationships with the Company (including suppliers, customers and vendors) regarding the Company or such business relationships. Notwithstanding anything to the contrary in this Agreement, no Target Company shall be required to disclose any information to Purchaser or its Representatives to the extent such disclosure would, in the Company’s reasonable good faith determination (i) result in a loss of any attorney-client or other provisions of this Section 5.2similar legal privilege, Purchaser and Seller (ii) contravene any applicable Law or (iii) contravene the confidentiality restrictions in any Contract to which the disclosing Person is a party (provided, that the Target Companies shall cooperate in implementing use good faith efforts to provide access that complies with such confidentiality restriction, including giving effect to the provisions of Section 8.13(b) hereof). Nothing in this Section 5.2 so as not 7.1 shall require any Target Company to prevent disclose or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofprovide access to any information which primarily relates to the negotiation of this Agreement or the Transactions.
(b) Following During the Closing DateInterim Period, each of Parent and Seller shallsubject to Section 8.13, Purchaser shall give, and shall cause its Affiliates to: (i) allow PurchaserRepresentatives to give, upon the Company, Pubco, Merger Sub and their respective Representatives, at reasonable prior notice and times during normal business hourshours and upon reasonable notice, through reasonable access to all offices and other facilities and to all employees, properties, Contracts, agreements, commitments, books and records, financial and operating data and other then existing information, of or pertaining to Purchaser or its Subsidiaries, as the Company, Pubco, Merger Sub or their respective Representatives may reasonably request regarding Purchaser, its Subsidiaries and their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and representatives, the right, at Purchaser’s expense, to examine other aspects and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any cause each of their respective Affiliates for any reasonable purpose relating Representatives to reasonably cooperate with the BusinessCompany, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)Pubco, regulatory Merger Sub and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, their respective Representatives in their investigation; provided, that Seller may destroy the Company, Pubco, Merger Sub and their respective Representatives shall conduct any such records activities in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice such a manner as not to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business or operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shallSubsidiaries, whether directly including conducting any invasive or indirectlyintrusive investigations. Notwithstanding anything to the contrary in this Agreement, support Purchaser and its Subsidiaries shall not be required to disclose any information to Company, Pubco, Merger Sub or sponsor a program that is intended or would reasonably be expected their respective Representatives to the extent such disclosure would, in the Purchaser’s reasonable good faith determination (i) result in the replacement a loss of the Distributors as servicers any attorney-client or brokers of record for the Insurance Contracts. Purchaser shall promptly make other similar legal privilege, (ii) contravene any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable applicable Law or (iii) contravene the terms of confidentiality restrictions in any Contract to which Purchaser or any of its Affiliates (including MONY) the disclosing Person is a party. party (provided, that the Purchaser and its Subsidiaries shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable good faith efforts to provide access that complies with such information without violation confidentiality restriction, including giving effect to the provisions of Applicable LawSection 8.13(a) hereof). The party granting access Nothing in this Section 7.1 shall promptly provide, or cause its Affiliates to provide, any consent requested by its require Purchaser or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting Subsidiaries to disclose or provide access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject which primarily relates to the applicable provisions negotiation of Section 5.3this Agreement or the Transactions.
Appears in 1 contract
Sources: Business Combination Agreement (Compass Digital Acquisition Corp.)
Access and Information. (a) During From the period between date hereof until the Contract Date Closing, subject to, and to the Closing Dateextent permitted by, Purchaser any applicable Laws, policies, practices, procedures or direction of any Government Entity, Seller shall, and shall be entitledcause each of the Seller Subsidiaries to, through (i) afford Buyer and its employees representatives (including representatives of entities providing or arranging financing for Buyer) access, during regular business hours and representatives and at its own expenseupon reasonable advance notice, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigationBusiness Designated Employees, examination or interview by Purchaser of other employees of any of Seller and its Affiliates who perform functions on behalf of or access provide services to the Business, the Business Intellectual Property, and the assets, books, properties, systems and records related to the Business, the Pre-Signing Restructuring Transactions or the Post-Signing Restructuring Transactions, (ii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the Business as Buyer from time to time may reasonably request, including in connection with the preparation of any audited financial statements or pro forma financial statements that Buyer may be required pursuant to applicable Law to file with or furnish to any Government Entity, in connection with any financing and in connection with the review, documentation and testing by Buyer of the provisions internal control over financial reporting of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours the Business and upon reasonable prior notice to Seller; provided, however, that such actions the Transferred Subsidiaries for the purpose of preparing for the compliance by Purchaser shall not unreasonably interfere Buyer after the Closing with the normal operation reporting and attestation requirements of the Exchange Act, (iii) instruct the employees of the Transferred Subsidiaries and other employees of Seller and its Affiliates who perform functions on behalf of or provide services to the Business, and Seller's and its Affiliates' counsel, financial advisors and other representatives and agents, to cooperate with Buyer in its investigation of the Business, including using reasonable best efforts to cause their accountants to give Buyer access to their work papers (on such customary terms and conditions as such accountants may require). Notwithstanding any other provisions of No investigation pursuant to this Section 5.2, Purchaser 5.1(a) shall alter any representation or warranty given hereunder by Seller. All requests for information and Seller shall cooperate in implementing the provisions of access made pursuant to this Section 5.2 so 5.1(a) shall be directed only to such Person or Persons as may be designated by Seller, and shall not be granted to prevent the extent deemed inconsistent with any Law, policy, practice, procedure or interfere with Parent’s and Seller’s compliance with direction of any Government Entity. No request for information or access made pursuant to this Section 5.1 hereofshall be granted to the extent that it would interfere unreasonably with Seller's business. All information received pursuant to this Section 5.1(a) shall be governed by the terms of Section 5.2.
(b) Following the Closing DateClosing, each upon the request of Parent any other party hereto, Seller and Seller Buyer shall, to the extent permitted by Law, policies, practices, procedures and shall cause directions of all relevant Government Entities and confidentiality obligations existing as of the Closing, grant to such other party and its Affiliates to: (i) allow Purchaser, upon representatives during regular business hours and subject to reasonable prior notice rules and during normal business hours, through its employees and representativesregulations of the granting party, the right, at Purchaser’s expensethe expense of the non-granting party, to examine inspect and make copies of any copy the books, records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for and other documents in the purpose of determining whether or not an Insurance Contract has met granting party's possession pertaining to the diversification requirements of Section 817(h) operation of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the ClosingClosing (including books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records). Access In no event shall either party have access to such employees and records shall not unreasonably interfere with the business operations consolidated Tax Returns of Seller or its Affiliatesthe other party.
(c) Following the Closing Date, Purchaser shallBuyer agrees to, and shall to cause its Affiliates (including the Transferred Subsidiaries) to: , (i) allow Seller, upon reasonable prior notice retain all Books and during normal business hours, through their respective employees Records in existence on the Closing Date for not less than five years following the Closing and representatives, the right thereafter shall retain such Books and Records in accordance with applicable Law and Buyer's record retention policies and procedures then-applicable to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s Buyer and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books subject to applicable Law, make personnel of Buyer and records for Seller’s examination and copying in its Affiliates (including the circumstances contemplated by clause (iTransferred Subsidiaries) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating in each case that such access is reasonably related to periods prior any Retained Assets, Retained Liabilities, Excluded Assets or Excluded Liabilities or otherwise necessary for Seller to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere comply with the business operations terms of Purchaser this Agreement, the Stockholder's Agreement, any Ancillary Agreement or its Affiliatesany applicable Law.
(d) Following Seller shall provide to Buyer, at least twenty Business Days prior to the Closing Date, Purchaser shalla list that sets forth the name of each bank in which any Transferred Subsidiary has an account or safe deposit box, vault, lock-box or other arrangement, the account number and shall cause its Affiliates todescription of each account at each bank and the names of all Persons authorized to draw thereon or to have access thereto; and the names of all Persons, provide such information to the Affiliated Distributors that are parties to the Distribution Agreementsif any, in accordance with the terms holding Tax or other powers of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser attorney from any Transferred Subsidiary or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect relating to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cytec Industries Inc/De/)
Access and Information. (a) During From the period between date hereof until the Contract Date Closing, subject to any Applicable Law, Seller, to the extent not unreasonably disruptive to the Business Employees and the Closing DateBusiness, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates and the Company to: , afford Purchaser, its Affiliates, and their Representatives reasonable access during normal business hours upon reasonable advance notice to the Books and Records, properties, work papers prepared by Seller, its Affiliates or its Representatives, other relevant information of the Company or the Business and senior management and employees of the Company and its agents and auditors, counsel and other Representatives and to the extent in the possession of the Company or the Seller Group and to the extent reasonably required by Purchaser relating to ensuring an orderly and efficient transition of the Business to Purchaser, to prepare for the Closing, to discuss retention of senior management after the Closing and to facilitate the satisfaction of the conditions to the Closing under Article VII; in each case, to the extent such document or report is customarily prepared by or on behalf of the Company or the Seller Group prior to the date hereof provided, however, that in no event shall Purchaser have access to any information (i) allow Purchaserthat relates to any portion of the business of Seller or its Affiliates that is not being transferred pursuant to this Agreement (including any consolidated, upon reasonable prior notice and during normal business hourscombined, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by affiliated or unitary Tax Return which includes Seller or any of its Affiliates for or any reasonable business purpose Tax-related work papers) or (including as is reasonably necessary for ii) the purpose disclosure of determining whether which would or not an Insurance Contract has met result in (A) the diversification requirements waiver of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, any legal privilege which Seller or any of its Affiliates may possess in discharging their Affiliates relate obligations pursuant to MONY or this Section 6.4, (B) the Business; disclosure of any trade secrets, (iiC) allow Purchaser to interview employees the violation of Parent, any obligations of Seller or any Seller’s Affiliates with respect to confidentiality if Seller or Seller’s Affiliates shall have used commercially reasonable efforts to obtain the consent of their respective Affiliates for any reasonable purpose relating such third party to the Business, including the preparation such inspection or examination of Tax Returns disclosure (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, provided that Seller and its Affiliates shall have no obligation not be required to maintain take any Non-Required Action to obtain such consent) or retain any books and records (D) the violation of Applicable Law to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser which Seller or any of its Affiliates (including MONY) at or prior to is subject. In the Closing. Access to such employees and records shall not unreasonably interfere with the business operations event that disclosing information would violate any obligation of Seller or any of its AffiliatesAffiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Seller shall make such information available if Purchaser delivers confidentiality undertakings reasonably satisfactory to Seller and Purchaser. Notwithstanding anything to the contrary herein, the auditors and independent accountants of Seller or any of its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such auditors or accountants. Notwithstanding anything to the contrary herein, neither Seller nor any of its Affiliates shall be required to disclose to Purchaser or any Representative of Purchaser any consolidated, combined, affiliated or unitary Tax Return which includes Seller or any of its Affiliates or any Tax-related work papers. Purchaser agrees and acknowledges that all information made available to Purchaser and its Affiliates and their respective Representatives hereunder shall be Confidential Information, subject to Section 6.6.
(cb) Following With respect to all Books and Records of the Company existing as of the Closing DateDate and in the possession of the Company or the Purchaser or delivered pursuant to this Agreement or any ancillary agreement contemplated hereby, Purchaser shall, and shall cause the Company preserve and retain such Books and Records in accordance with policies that are no less stringent than those generally applied by Purchaser and its Affiliates to: with respect to their respective other businesses for at least seven years after the Closing. Following the Closing, to the extent permitted by Applicable Law, Purchaser agrees to provide (or cause its Affiliates to provide) Seller with all necessary access to all Books and Records and other documents (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) that it acquires pursuant to this Agreement and to its assets, properties and Representatives, in each case, to the extent that such access is reasonably required by Seller or any of its Affiliates, (i) allow Sellerto prepare financial statements, upon reasonable prior notice Tax filings or regulatory filings of Seller or any of its Affiliates, (ii) to comply with the terms of any Transaction Document, any Applicable Law or request of any Governmental Authority, or (iii) to defend or prosecute any judicial, arbitral or regulatory Action to which Seller or any of its Affiliates is a party relating to the business and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, affairs of the books and records of MONY to the extent relating to periods Company prior to the Closing (including Actions arising from the transactions contemplated hereby or under any Transaction Documents), in each case of the foregoing clauses (i) and (B) interview Purchaser’s and its Affiliates’ employeesii), subject, in the case of either clause any Confidential Information of Purchaser, the Company or any of their Affiliates, to Seller and their Representatives agreeing to maintain the confidentiality of such information (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying except in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available case of information required to prepare Tax filings or regulatory filings of Seller the books and records or any of MONY to the extent relating to its Affiliates in respect of periods ending on or prior to the Closing until at least the sixth anniversary of the Closing Date, ); provided, however, that Purchaser may destroy such books and records in its discretion following no event shall Seller have access to any information, the third anniversary disclosure of which would result in (A) the Closing Date after giving reasonable prior written notice to Seller waiver or destruction of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with any legal privilege, (B) the business operations disclosure of Purchaser any trade secrets, (C) the violation of any obligations of Purchaser, the Company or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its their Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to confidentiality if Purchaser, the Insurance ContractsCompany or their Affiliates shall have used commercially reasonable efforts to obtain the consent of such third party to such access or disclosure (provided that Purchaser, the Company and none its Affiliates shall not be required to take any Non-Required Action to obtain such consent) or (D) a violation of Applicable Law. In the event that disclosing information would violate any obligation of Purchaser, the Company or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Purchaser shall make such information available if Seller delivers confidentiality undertakings reasonably satisfactory to Purchaser. Notwithstanding anything to the contrary herein, the auditors and independent accountants of Purchaser or any of its Affiliates shallshall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such auditors or accountants.
(c) All physical access to be granted to any Person may be limited to the extent that the party granting such access determines in good faith that such limitation is necessary in light of COVID-19 or any COVID-19 Measures, whether directly or indirectly, support or sponsor a program that is intended or including if providing such access would reasonably be expected to result in jeopardize the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms health and safety of any Contract to which Purchaser or any employee of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (SPX Corp)
Access and Information. (a) During the period between the Contract Date The Sellers and the Closing DateCompany shall cause each Subsidiary of the Company to permit Buyer and its Representatives after the date of this Agreement to have reasonable access, Purchaser shall be entitled, through its employees during regular business hours and representatives and at its own expenseupon reasonable advance notice, to make the Real Property, subject to the Company’s reasonable rules and regulations, but not the right to perform any invasive or environmental testing or sampling or other “Phase II” investigations, provided that Buyer shall maintain and deliver evidence upon request to the Company of adequate insurance before entering any Real Property and indemnify the Company for any physical damage to property caused by Buyer or Buyer’s Representatives in connection with such examination access by Buyer. Without limiting the generality of the Books and Records as Purchaser may reasonably request. Any investigationforegoing, examination until the Closing or interview by Purchaser the earlier termination of employees of any of Seller this Agreement, the Company and its Affiliates Subsidiaries shall permit Buyer’s transition planning team reasonable on-site access to their offices during regular business hours for the purposes of meeting with their management, developing an understanding of the decisions of such management and coordinating and planning the transition of the business and operations of the Company and its Subsidiaries consistent with applicable Legal Requirements. The Company shall furnish, or cause to be furnished, to Buyer any financial and operating data and other information with respect to the Company and its Subsidiaries, including without limitation continued access pursuant to any the online data room (it being understood that Sellers and the Company shall have no obligation to continue to update such online data room), as Buyer shall from time to time reasonably request and shall maintain or cause to be maintained intact all electronic files and records to the Company and its Subsidiaries in the ordinary and usual course of business consistent with past practices. It is expressly understood by the parties hereto that, notwithstanding the provisions of this Section 5.2 7.1, the Company, in its sole discretion, may deny or restrict any access (i) involving possible breaches of applicable confidentiality agreements with third parties or environmental reviews the written work plan for which had not been previously approved by the Company in its sole discretion, or possible waivers of any applicable attorney-client privileges; or (ii) in the event Buyer is in breach of this Agreement. It is further understood that the Company shall be conducted under no obligation to grant Buyer or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that its representatives any access if such actions by Purchaser shall not access would unreasonably interfere with the normal operation Company and its Subsidiaries’ operations, activities or employees, or if such access would, in the reasonable judgment of the BusinessCompany, violate applicable antitrust, industrial security, patient privacy or similar laws. In an effort to prevent any interference or disruption caused by such access, the Company may, at its sole discretion, reasonably limit the number of individuals visiting its facilities. Buyer shall coordinate all such access with a Company employee who will be identified to Buyer promptly after the execution of this Agreement. Notwithstanding anything to the contrary contained herein, prior to the Closing, without the prior written consent of the Company, which may not be unreasonably withheld, Buyer shall not contact any other provisions non-management employee, supplier to or customer of this Section 5.2, Purchaser the Company and Seller its Subsidiaries; provided that the identity of such suppliers and customers shall cooperate in implementing have been made available to Buyer and provided further that such restrictions shall not apply to any suppliers or customers with which Buyer has a relationship as of the provisions of this Section 5.2 date hereof so long as such contact relates solely to such current relationship and not to prevent the Company or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofits Subsidiaries.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained All information provided or obtained by Seller Buyer heretofore or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)hereafter, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only pursuant to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (ia) above. Purchaser , shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records be held in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, confidence by Buyer in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partythe Confidentiality Agreement, (ii) that may constitute privileged attorney-client communications or attorney work product dated April 24, 2007, between Buyer and the transfer of which, or Company (the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law“Confidentiality Agreement”). The party granting access shall promptly provideparties hereby agree that, or cause its Affiliates notwithstanding anything to provide, any consent requested by its or its Affiliates’ independent accountants the contrary contained in connection with such access. If so reasonably requested by the party granting accessConfidentiality Agreement, the other party terms of the Confidentiality Agreement shall enter into a customary joint defense agreement with survive from the party granting access date hereof until the Closing and its Affiliates with respect shall terminate at the Closing. The parties hereby further agree that, in the event this Agreement is terminated prior to Closing for any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 reason, the term of the Confidentiality Agreement shall be subject to extended until the applicable provisions later of Section 5.3the original expiration date and the date two years after the termination of this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Coventry Health Care Inc)
Access and Information. (a) During From the period between date of this Agreement until the Contract Date Effective Time, subject to applicable Law and any reasonable rules, regulations and policies maintained by each of Parent and the Closing DateCompany, Purchaser upon reasonable advance notice, each of Parent and the Company shall be entitled(and shall cause each of their respective Subsidiaries to) afford the other party’s officers and other authorized Representatives reasonable access, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours hours, under the supervision of designated personnel or Representatives and upon reasonable prior notice in such a manner as to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation operations of the Business. Notwithstanding other party or any of its Subsidiaries, to any employees, properties, books, contracts, documents and records reasonably requested by the other provisions of party, provided that no investigation pursuant to this Section 5.27.3(a) shall affect or be deemed to modify any representation or warranty made by Parent or the Company herein, Purchaser and Seller provided, further, that the foregoing shall cooperate not require either Parent or the Company (i) to permit any inspection, or to disclose any information, that in implementing the provisions reasonable judgment of Parent or the Company, as applicable, would result in the disclosure of any Trade Secrets and Know-How of third parties or violate any of its obligations with respect to confidentiality if the withholding party shall have used commercially reasonable efforts to obtain the consent of such third party to such inspection or disclosure or (ii) to disclose any privileged information of Parent, the Company or any of their respective Subsidiaries. All requests for information made pursuant to this Section 5.2 so 7.3(a) shall be directed to the executive officer or other Person designated by Parent or the Company, as not applicable, and neither Parent nor the Company shall directly or indirectly contact any officer, director, employee, agent or representative of the other party or any of its Subsidiaries without the prior approval of such designated Person. In an effort to prevent any interference or interfere with Parent’s disruption caused by such access, each of Parent and Seller’s compliance with Section 5.1 hereofthe Company may, in their sole discretion, reasonably limit the number of individuals having access to, and the number of visits to, their respective facilities. All such information shall be governed by the terms of the Confidentiality Agreement.
(b) Following For a period of six (6) years following the Closing Date, each of Parent and Seller shall, and shall cause the Surviving Company to, retain all material books, Contracts, documents and records of the Company and its Affiliates to: (i) allow PurchaserSubsidiary pertaining to all periods prior to the Closing. From and after the Closing Date, subject to any applicable Law and any reasonable rules, regulations and policies maintained by Parent, upon reasonable prior notice advance notice, Parent shall (and shall cause the Surviving Company to) afford the Stockholder Representative and any of its authorized Representatives reasonable access, during normal business hours, through its employees under the supervision of Parent’s designated personnel or Representatives and representatives, in such a manner as to not interfere with the right, at Purchaser’s expenseoperations of Parent or the Surviving Company, to examine any employees, properties, books, contracts, documents and make copies of any records retained reasonably requested by Seller or any of its Affiliates for any reasonable business purpose the Stockholder Representative (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(hi) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only in response to the extent that such records request or at the direction of Parenta Governmental Entity, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; Returns or other documents related to Tax matters and (iiiii) maintain such books and records for Seller’s examination and copying in connection with the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records determination of MONY any matter relating to the extent relating to periods prior to rights or obligations of any Person under this Agreement, the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shallVoting Agreement, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Escrow Agreement; provided that such requested change the foregoing shall not require Parent (x) to permit any inspection, or to disclose any information, that in the reasonable judgment of Parent would not violate Applicable Law or result in the terms disclosure of any Contract to which Purchaser Trade Secrets and Know-How of third parties or violate any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record obligations with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of confidentiality if Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide obtain the consent of such information without violation of Applicable Law. The third party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant inspection or disclosure or (y) to this Section 5.2(f). Any disclose any privileged information provided pursuant to this Section 5.2 shall be subject to of Parent or the applicable provisions of Section 5.3Surviving Company.
Appears in 1 contract
Sources: Merger Agreement (AbbVie Inc.)
Access and Information. (a) During Subject to applicable Laws relating to the period between the Contract Date exchange of information and the Closing Datedirection of any Governmental Entity, prior to the Closing, (i) Sellers shall provide and shall cause the Partnership to provide to Purchaser shall be entitledand its representatives after the date of execution of this Agreement any information and documents reasonably requested by Purchaser primarily relating to the Partnership and Subsidiaries and their respective businesses, through its employees operations, affairs, properties, books and representatives records, including such information and at its own expense, documents relating to make such examination Subsidiaries of the Books Partnership, that are not available at or through the Partnership or its Subsidiaries and Records shall use commercially reasonable efforts to provide Purchaser and its representatives with reasonable access to personnel from G▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP directly involved in the audit of the 2006 Audited Financial Statements (it being understood that all such access be coordinated through Sellers), (ii) Sellers shall, and cause the Partnership and its Subsidiaries to, permit Purchaser and its representatives after the date of execution of this Agreement to have reasonable access at reasonable times to the personnel, properties, books and records of the Partnership and its Subsidiaries, provided that any such access may not unreasonably interfere with the conduct of the business of Sellers, the Partnership or its Subsidiaries, and (iii) Sellers shall cause the Partnership and its Subsidiaries to furnish such information and documents in its possession relating to the Partnership and its Subsidiaries as Purchaser may reasonably request. Any investigationPrior to the Closing, examination all information provided or interview obtained pursuant to the foregoing shall be held by Purchaser in accordance with and subject to the terms of employees the Confidentiality Agreement, dated July 18, 2006, between Purchaser and the Partnership (the “Confidentiality Agreement”).
(b) To the extent permissible under applicable Law, from the Closing until the seventh anniversary of any of Seller the Closing, Purchaser will afford promptly to Sellers and its Affiliates or agents reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours to the books, records and upon reasonable prior notice auditors of the Partnership and its Subsidiaries to Sellerthe extent reasonably required by Sellers for financial reporting and accounting matters and the preparation and filing of any Tax Returns for any period ending on or before the Closing Date or any taxable period beginning on or before the Closing Date; provided, however, provided that any such actions access by Purchaser shall Sellers may not unreasonably interfere with the normal operation conduct of the business of the Partnership or Purchaser. From and after the Closing, Sellers shall (i) hold all information relating to the Partnership and its Subsidiaries or the Business possessed by or subject to the control of Sellers (including all information provided or obtained pursuant to the immediately preceding sentence) in accordance with and subject to the terms of the Confidentiality Agreement as though the terms thereof restricted disclosure and use of such information by Sellers and its representatives in the same manner and to the same degree as it restricts disclosure and use by Purchaser and its representatives of Confidential Information (as such term is defined therein) and such restrictions are to remain in effect after the Closing without any time limitation and (ii) not use any such information to the detriment of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following Sellers hereby assign to Purchaser, effective as of the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representativesClosing, the right to (A) examine rights of Sellers under any confidentiality agreement currently in effect which was entered into between a Seller and make copiesa third party and which restricts the disclosure or use of information provided by Sellers, at Seller’s expensethe Partnership, of and/or its Subsidiaries or the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statementsBusiness; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information rights assigned pursuant to the Affiliated Distributors that foregoing shall consist solely of those rights which are necessary for Purchaser to pursue and enforce the agreement of such third parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser not disclose or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts Partnership, its Subsidiaries or the holders Business as provided in such confidentiality agreement. Each Seller hereby retains sufficient rights in each such confidentiality agreement to pursue and enforce the agreement of the Insurance Contracts only for the purpose of servicing customers with respect third party thereto to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller not disclose or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to such Seller as provided in such confidentiality agreement. Prior to the Insurance Contracts Closing, neither Sellers nor the Partnership shall, without the prior consent of Purchaser, terminate, amend, modify or the holders waive any provision of any confidentiality or similar agreement in respect of the Insurance Contracts only for the purposes of servicing customers with respect matters contemplated by this Agreement to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser which it or any of its Affiliates with any Applicable LawSubsidiaries is a party. Prior to the Closing, Sellers shall enforce, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates toSubsidiaries to enforce, use information relating to the Business only for the purpose of complying, or causing its fullest extent permitted under applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver provisions of any such privilege or (iii) if the provision of access to such document (or portion thereof) or informationagreements, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its including using commercially reasonable efforts to provide obtain injunctions to prevent any breaches of such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates agreements and to provide, enforce specifically the terms and provisions thereof in any consent requested by its or its Affiliates’ independent accountants in connection with court having jurisdiction over such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3matter.
Appears in 1 contract
Sources: Partnership Interest Purchase Agreement (Payless Shoesource Inc /De/)
Access and Information. (a) During Between the period between the Contract Date date of this Agreement and the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: Sellers will (i) allow Purchasergive Buyer, its counsel, financial advisors, auditors and other authorized representatives reasonable access, upon reasonable prior notice written request and during normal business hours, through its employees to all properties, books, records, and representatives, documents of Sellers that are directly related to the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller Purchased Assets or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) operation of the Code)Pharmacies, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser furnish to interview employees of ParentBuyer, Seller or any of their respective Affiliates for any reasonable purpose its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements Pharmacies and the conduct of any litigation relating to the Business or otherwisePurchased Assets as Buyer may reasonably request, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination cooperate and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in prioritize and allocate its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice resources as reasonably necessary to Purchaser of its intent to destroy such documents, provided, further, that Seller work with Buyer and its Affiliates shall have no obligation representatives, subcontractors and/or agents to maintain or retain any books ensure proper data conversion, (iv) deliver to Buyer (in electronic form where available) commencing promptly after the date hereof the data reasonably requested by Buyer in order to commence and records to the extent that electronic or paper copies or originals of such books progress item match and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shallother transition related planning activities, and shall cause its Affiliates to: (iv) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, instruct the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case counsel, financial advisors and auditors of either clause (i)(A) or (i)(B), Sellers to reasonably cooperate with Buyer in connection with the preparation or examination of Tax Returnsforegoing, regulatory in each case, subject to applicable Law; provided that it is understood and statutory filings agreed that Buyer has informed Sellers that the access and financial statements; conduct that is required by this Section 6.11 is critical to its ability to conduct business and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary service customers of the Closing DatePharmacies at Closing, provided, but that Purchaser may destroy such books access and records conduct must be provided or performed in its discretion following a form or manner or pursuant to a process that complies with applicable Law and any medical privacy policy of Sellers maintained for the benefit of third anniversary of the Closing Date after giving reasonable prior written notice parties that imposes a legally binding obligation on Sellers or is required to Seller of its intent be complied with in order to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, be in accordance with applicable Law. To the terms extent that providing access to certain information or personnel or taking certain action under this Section 6.11 would not so comply in a given form or manner or pursuant to a given process, the Parties shall agree on a form or manner of access or conduct that will both enable Buyer to conduct business and service customers of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors Pharmacies at Closing and will comply with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereofsuch policy (e.g., in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in pricing information may be redacted from the Business is also a holder of an Insurance Contractitem files and pharmacy reimbursement rates may be redacted from third party plan information).
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Freds Inc)
Access and Information. (a) During From the period between Seller Date until the Contract Date Closing, subject only to applicable rules and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination regulations of the Books FCC and Records as Purchaser may reasonably request. Any investigation, examination or interview provided that Buyer shall agree to be bound by Purchaser of employees any confidentiality provisions of any Material Contracts, Seller shall, at the sole cost and expense of Seller Buyer, afford to Buyer and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at representatives (including accountants and counsel) reasonable times access, during normal business hours and hours, upon reasonable prior notice and in such manner as will not unreasonably interfere with the conduct of the business of Seller, to Sellerall properties, books, records, and Tax Returns of Seller and all other information with respect to its business, together with the opportunity, at the sole cost and expense of Buyer, to make copies of such books, records, and other documents and to discuss the business of Seller with such officers, directors, accountants, consultants, and counsel for Seller as Buyer deems reasonably necessary or appropriate for the purposes of familiarizing itself with Seller and the Station, including the right to visit the Station; provided, however, that such actions by Purchaser Station visits shall be scheduled at least five business days in advance and shall be conducted in a manner intended to minimize the disruption of the operations of the Station; provided, further, however, that Buyer shall not unreasonably interfere with contact any Station personnel without the normal operation express prior consent of Seller. All information provided to Buyer pursuant to this Agreement shall be considered confidential information and will not be disclosed to any third party or utilized by Buyer for any purpose other than consummating the Business. Notwithstanding any other provisions of transactions contemplated hereby, until such time as the transactions contemplated by this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofAgreement have been consummated.
(b) Following the Closing DateWithin 10 days after its receipt from SFX, each of Parent and Seller shallshall deliver to Buyer, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)Station, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial monthly operating statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business prepared in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only business for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractinternal purposes.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Heftel Broadcasting Corp)
Access and Information. (a) During The Sellers shall cause the period between the Contract Date Companies to give to Purchaser and the Closing Date, Purchaser shall be entitled, through its employees agents and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours to (a) the Chief Executive Officer and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation Chief Financial Officer of the Business. Notwithstanding any Business and other provisions employees, members of this Section 5.2management and customers of the Companies and the Business to whom Purchaser reasonably requests access, Purchaser provided that access to customers shall be subject to mutual coordination by YRC Logistics and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s Purchaser, and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Dateproperties, each assets, books, records, business plans and budgets of Parent the Companies and Seller shallthe Company Subsidiaries (including, and shall cause its Affiliates to: (i) allow Purchaserwithout limitation, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, access to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary Leased Real Property for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)performing any non-intrusive environmental investigations that Purchaser shall desire, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent provided that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon the Sellers shall only be obligated to use commercially reasonable prior notice and during normal business hours, through their respective employees and representatives, efforts to give access to any Leased Real Property if the right to (A) examine and make copies, at Seller’s expense, consent of the books and records lessor of MONY such Leased Real Property is required to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokersperform environmental investigations, and (ii) except as set forth in Purchaser shall not perform any Phase II Environmental Site Investigations without the last sentence express written approval of this Section 5.2(e) or in Section 5.14(fthe Seller Representative), each of Parent and Seller shall, will furnish such information and shall cause its Affiliates to, use information documents in their possession relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement Companies and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business)Company Subsidiaries as Purchaser and its agents and representatives may reasonably request. Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide All such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested and documents obtained by its Purchaser or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 representatives shall be subject to the applicable provisions terms and conditions of Section 5.3that certain Confidentiality Agreement, dated February 5, 2009, by and between Austin Ventures X, L.P. and YRC Logistics (the “Confidentiality Agreement”). The Sellers, the Companies and the Company Subsidiaries, as applicable, shall promptly support the provision of information to third party providers requested by Purchaser or its agents or representatives to evaluate establishing an independent bank line of credit or insurance policies at the Companies or Company Subsidiaries, provided that Purchaser and such agents or representatives shall cooperate with the Sellers to inform such third party providers of the confidential nature of such information provided to them.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (YRC Worldwide Inc.)
Access and Information. (a) During From the period date hereof until the Closing Date or termination of this Agreement, and except to the extent Parent and Newco are in breach of this Agreement, Parent, Newco, Parent’s financing parties and their respective representatives shall be entitled to make or cause to be made such reasonable investigation of the Company and its Subsidiaries, and the financial and legal condition thereof, as Parent and Newco deem reasonably necessary or advisable during normal business hours and upon advance notice, and the Company shall cooperate with any such reasonable investigation to the extent such access does not unreasonably interfere with the operations, activities and employees of the Company and its Subsidiaries. The foregoing investigation rights shall not include the right to (i) take any samples the written work plan for which has not been approved by the Company in its sole discretion, (ii) have access to any information the disclosure of which is prohibited by contract or applicable law or which would result in the waiver of any privileges, or (iii) have access to any formulae, know-how or other proprietary knowledge of the Company or its Subsidiaries. Parent and Newco and its representatives and agents shall not contract or hold discussions with suppliers or customers of the Company without the prior written consent of the Company and in any event only with the participation of representatives of the Company. Parent and Newco agree to conduct any such discussions with reasonable discretion and sensitivity to the Company’s relationships with its suppliers, customers and employees.
(b) All information disclosed, whether before or after the date hereof, pursuant to this Agreement or in connection with the transactions contemplated by, or the discussions and negotiations preceding, this Agreement to Parent and Newco (or their representatives or affiliates) shall be kept confidential by such Persons in accordance with the confidentiality agreement dated January 27, 2005 by and between the Contract Date Company and affiliates of Parent and Newco (the Closing Date“Confidentiality Agreement”) and shall not be used by any Person, Purchaser other than in connection with the transactions contemplated by this Agreement.
(c) After the Effective Time, Parent shall be entitledmake available and shall cause the Surviving Corporation to make available, through its employees and representatives and at its own the Representative’s out of pocket expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Representative and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times accountants, agents and representatives during normal business hours and upon reasonable prior notice to Seller; providedrequest any and all books, howeverrecords, that such actions by Purchaser shall not unreasonably interfere with the normal operation contracts and other information of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser Company and Seller shall cooperate in implementing its Subsidiaries existing at the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only Effective Time to the extent that such records of Parent, Seller or reasonably requested by the Representative in connection with any of their Affiliates relate purposes contemplated by this Agreement. Parent will cause the Surviving Corporation to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, hold all of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s Company and its Affiliates’ employeesSubsidiaries existing on the Effective Date and not destroy or dispose of any thereof for a period of seven years from the Effective Date or such longer time as may be required by law, in the case and thereafter, if it desires to destroy or dispose of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying records, will offer first in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available writing at least 60 days prior to Seller the books and records of MONY such destruction or disposition to surrender them to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its AffiliatesRepresentative.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During the period between the Contract Date and the Closing Date, Purchaser Seller shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller permit Buyer and its Affiliates or access pursuant to any representatives after the date of the provisions execution of this Section 5.2 shall be conducted or occur at Agreement to have reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to the real property owned or leased by Pearle and the Subsidiaries and to the officers and employees of Pearle and the Subsidiaries, subject to Seller's reasonable rules and regulations, and shall furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the business and properties of Pearle and the Subsidiaries as Buyer shall from time to time reasonably request; providedPROVIDED THAT the foregoing shall not require Seller to permit any inspection, howeveror to disclose any information, that such actions by Purchaser shall not unreasonably interfere with in its reasonable judgment would result in the normal operation disclosure of any trade secrets of third parties or violate any of Seller's, Pearle's or any of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Subsidiaries' obligations with respect to confidentiality if Seller shall cooperate have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure. Seller will assist Buyer and its representatives in implementing gaining access to the provisions franchisees, the associate store owners and the licensees of this Section 5.2 so as not to prevent or interfere with Parent’s Pearle and Seller’s compliance with Section 5.1 hereofthe Subsidiaries.
(b) Following In the Closing Dateevent of the termination of this Agreement, each of Parent and Buyer at its own expense shall promptly deliver (without retaining any copies thereof) to Seller, or (at Seller's option) confirm in writing to Seller shallthat it has destroyed all information furnished to Buyer or its representatives by Seller, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representativesPearle, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller Subsidiaries or any of their respective Affiliates for any reasonable purpose relating to agents, employees or representatives as a result hereof or in connection herewith, whether so obtained before or after the Businessexecution hereof, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)and all analyses, regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwisecompilations, or the conduct of any regulatoryforecasts, customer studies or other dispute resolution process and (iii) maintain documents prepared by Buyer or its representatives which contain or reflect any such records for Purchaser’s examination and copying until information. Buyer shall at least the sixth anniversary of all times prior to the Closing Date, providedand in the event of termination of this Agreement, that Seller may destroy cause any information so obtained to be kept confidential and will not use, or permit the use of, such records information in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain business or retain in any books and records to the extent that electronic other manner or paper copies or originals of such books and records are delivered to Purchaser or for any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesother purpose except as contemplated hereby.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right All information provided or obtained pursuant to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(Aa) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated above shall be held by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, Buyer in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partythe confidentiality agreement, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.dated
Appears in 1 contract
Access and Information. (a) During Buyer acknowledges that ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ has been running the period between Company's business heretofore and has had, and continues to have, full access to substantially all information regarding the Contract Date Company and its Business. Hereafter, Seller shall permit Buyer and its representatives after the date of execution of this Agreement to have reasonable access, during regular business hours and upon reasonable advance notice, to the real property owned or leased by the Company and the Closing DateSubsidiaries and to the officers of the Company and its Subsidiaries, Purchaser and shall furnish, or cause to be entitledfurnished, through to Buyer any financial and operating data and other information that is available with respect to the business and properties of the Company as Buyer shall from time to time reasonably request, PROVIDED that the foregoing shall not require Seller to permit any inspection, or to disclose any information, that in its employees and representatives and reasonable judgment would result in the disclosure of any trade secrets of third parties or violate any of Seller's, the Company's or any of the Subsidiaries' obligations with respect to confidentiality if Seller shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure.
(b) In the event of the termination of this Agreement pursuant to Section 8.1, Buyer, at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of shall promptly deliver (without retaining any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice copies thereof) to Seller; provided, howeveror (at Seller's option) confirm in writing to Seller that it has destroyed, that such actions all information furnished to Buyer or its representatives by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the rightCompany, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller Subsidiaries or any of their respective Affiliates for any reasonable purpose relating to agents, employees or representatives as a result hereof or in connection herewith, whether so obtained before or after the Businessexecution hereof, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)and all analyses, regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwisecompilations, or the conduct of any regulatoryforecasts, customer studies or other dispute resolution process and (iii) maintain documents prepared by Buyer or its representatives which contain or reflect any such records for Purchaser’s examination and copying until information. Buyer shall at least the sixth anniversary of all times prior to the Closing Date, providedand in the event of termination of this Agreement, that Seller may destroy cause any information so obtained to be kept confidential and will not use, or permit the use of, such records information in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain business or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer manner or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of for any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the other purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractcontemplated hereby.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Santa Barbara Restaurant Group Inc)
Access and Information. (a) During From and after the period between the Contract Date and date of this Agreement until the Closing Date, Sellers shall afford to Purchaser shall be entitledand Purchaser’s accountants, through its employees counsel and other representatives and at its own expensereasonable access, from time to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times time during normal business hours and upon reasonable with prior notice throughout the period from the date hereof until the Closing Date at Purchaser’s sole expense, to Seller; providedthe properties, howeverbooks, that such actions accounting records and related work papers, contracts, and commitments, and, to the extent available and permitted by Purchaser shall not unreasonably interfere with the normal operation Bankruptcy Court upon the request of Parent, personnel and independent accountants and records, of Sellers to the extent the same relate to the Purchased Assets and the Business. Notwithstanding any During such period, Sellers shall furnish to Purchaser and to Purchaser’s accountants, counsel and other provisions representatives copies of such documents and all such other information concerning Sellers as Purchaser may reasonably request at Purchaser’s sole expense (such documents and information, together with the properties, books, accounting records and related work papers, contracts, commitments, and records of Sellers referenced in the first sentence of this Section 5.29.1(a), the “Sensitive Information”). Any fees and expenses of Sellers’ accountants or counsel incurred and any request to the Bankruptcy Court made pursuant to this Section 9.1 (a) shall be at the sole cost and expense of Purchaser. Purchaser and Seller its representatives shall cooperate in implementing with Sellers and their representatives and shall use their reasonable efforts to minimize any disruption to Sellers’ business. Notwithstanding anything herein to the provisions of contrary, no such investigation or examination shall be permitted to the extent that it would require Sellers to disclose information subject to attorney- client privilege or conflict with any confidentiality obligations to which Sellers are bound. No investigation or inspection pursuant to this Section 5.2 so as not 9.1 (a) shall in any way affect or diminish the respective conditions and obligations of the parties to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofthis Agreement to consummate the transactions contemplated by this Agreement.
(b) Following Except for the Closing Datepurposes of reviewing, each of Parent and Seller shallinvestigating, and shall cause its Affiliates to: (i) allow Purchaserconsidering the transactions contemplated by this Agreement and the Ancillary Agreements, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at as necessary or appropriate to exercise Purchaser’s expenserights or perform Purchaser’s obligations under this Agreement or the Ancillary Agreements, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) in respect of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwisePurchased Assets, or the conduct of as required by any regulatoryOrder, customer Law or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least legal requirement, Purchaser shall not use the sixth anniversary of Confidential Information. For the Closing Datepurposes hereof, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice “Confidential Information” means Sensitive Information provided by Sellers to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation consideration by Sellers and Purchaser of the transactions contemplated hereby, but does not include any data, information or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause material that (i) above. was or is possessed or known by Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records receipt or availability from Sellers in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partyconnection herewith, (ii) that may constitute privileged attorney-client communications was or attorney work product and is independently developed by Purchaser without the transfer benefit of whichdisclosure or availability of such data, information, or the provision of access to whichmaterial by Seller in connection herewith, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if was or is published or available to the provision general public other than through a breach of access to such document (or portion thereof) or information, as determined this Agreement by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly providePurchaser, or cause its Affiliates (iv) was or is obtained by Purchaser from a third party with, to providePurchaser’s knowledge, any consent requested by its a valid right to disclose or its Affiliates’ independent accountants in connection with make available such access. If so reasonably requested by the party granting accessdata, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3or material.
Appears in 1 contract
Access and Information. (a) During the period between from the Contract Date and date of this Agreement to the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination upon the reasonable written request of the Books Purchaser and Records as subject to compliance by the Purchaser may reasonably request. Any investigationwith the terms of the Confidentiality Agreement and applicable Laws (including antitrust Laws), examination or interview by the Sellers’ Agent shall arrange for the Purchaser of employees of any of Seller and its Affiliates or representatives to be granted reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours to the CEO and upon reasonable CFO and, subject to the prior notice written consent of the CEO or the CFO and under their supervision, to Seller; providedthe Acquired Companies’ senior management and, howeverwithin the supervision and control of the CEO, that to information concerning the business, properties and operations of the Acquired Companies, as the Purchaser may reasonably request from time to time for purposes of preparing for the Closing, provided that:
(i) such actions by Purchaser access or assistance shall not unreasonably interfere with the normal operation business and operations of the Business. Notwithstanding Acquired Companies and any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing such information being subject to the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.Confidentiality Agreement;
(bii) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller such access or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only assistance may be limited to the extent the Sellers' Agent reasonably demonstrates, in light of COVID-19 (taking into account any Pandemic Measure), that such records access would jeopardize the health, safety and welfare of Parentthe directors, Seller officers or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including Acquired Companies and other individuals having business dealing with the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and Acquired Companies;
(iii) maintain such records for Purchaser’s examination and copying until at least notwithstanding the sixth anniversary of foregoing, the Closing Date, provided, Sellers' Agent shall not be required to provide access to any information which it reasonably demonstrates that Seller it may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records not provide to the extent that electronic Purchaser by reason of confidentiality undertakings with a third party or paper copies by reason of antitrust or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.cartel Laws; and
(civ) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreementsrefrain from, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support contacting any customer, supplier, agent, representative, creditor, co-contracting party (including franchisee, licensee or sponsor a program that is intended sublicense) or would reasonably be expected to result in the replacement advisor of the Distributors as servicers Acquired Companies or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change which is in commercial relationship with the servicer or broker of record Acquired Companies, except for Persons with respect to whom the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates relevant Affiliate (including MONYi) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date sustain usual commercial and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business professional relationships in the ordinary course of business, or (ii) seek to develop in the future, and in accordance with past practices (including any purpose relating to compliance by Parenteach case, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating without reference to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts Transaction or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), Acquired Companies and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the sole purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement such professional and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractcommercial relationships.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Put Option Agreement (Heico Corp)
Access and Information. (a) During Sellers shall afford Buyer, and its counsel, accountants and other representatives of Buyer, reasonable access, unless such access is otherwise restricted pursuant to this Agreement, throughout the period between from the Contract Execution Date and to the Closing Date, Purchaser to the Acquired Assets and the employees, personnel and medical staff associated therewith and all the properties, books, Contracts, commitments, Cost Reports and records respecting the Business and the Acquired Assets (regardless of where such information, may be located) which Seller possesses or to which it has access. Such access shall be entitled, through its employees and representatives and at its own expense, afforded to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times Buyer during normal business hours and upon reasonable prior notice only in such manner so as not to Seller; provided, however, that such actions by Purchaser shall not unreasonably disturb patient care or to interfere in any material respect with the normal operation operations of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of Sellers' covenants under this Section 5.2 so as not to prevent or interfere are made with Parent’s and Seller’s the understanding that Buyer shall use all such information in compliance with Section 5.1 hereof.
(b) Following all Laws and for the Closing Datesole purpose of consummating the transactions. The foregoing notwithstanding, each Buyer acknowledges and agrees that ▇▇▇▇▇'s access to the books and records of Parent the Business and Seller shallthe Acquired Assets shall not include access to, and Sellers shall cause its Affiliates to: (i) allow Purchasernot have any obligation to deliver to Buyer, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller information concerning any alleged dispute or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether pending litigation, investigation or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller proceeding involving Sellers or any of their respective Affiliates for any reasonable purpose relating that is protected by or subject to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwiseattorney-client privilege, or the conduct disclosure of which is restricted by an agreement entered into in connection with such dispute, litigation, investigation or proceeding or an order entered by any regulatorycourt; moreover, customer Buyer shall not have access to any records the disclosure of which, in the opinion of Sellers' legal counsel, would be prohibited by any Law, accreditation standards, or other dispute resolution process and rule or agreement (iiiexpress or implied) maintain of confidentiality, except that Buyer may be granted access to such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records they are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course appropriately redacted and in accordance conformity with past practices (including such other reasonable procedures as may be required to conform to any purpose relating to compliance by Parent, Seller or any such requirements of their respective Affiliates with any Applicable Law, accreditation standards or to dealings with any Governmental Authority, relating to the ownership, operation rule or administration agreement of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractconfidentiality.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Asset Purchase Agreement
Access and Information. (a) During From the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions date of this Section 5.2 Agreement until the Effective Time, upon reasonable advance notice, the Company shall be conducted or occur at (and shall cause each of its Subsidiaries to) afford Parent’s officers and other authorized Representatives reasonable times access, during normal business hours hours, under the supervision of designated personnel or Representatives and upon reasonable prior notice in such a manner as to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation operations of the Business. Notwithstanding Company or any other provisions of its Subsidiaries, to any employees, properties, books, contracts, documents and records reasonably requested by Parent, provided that no investigation pursuant to this Section 5.27.3(a) shall affect or be deemed to modify any representation or warranty made by the Company herein, Purchaser and Seller provided, further, that the foregoing shall cooperate not require the Company to disclose any privileged information of the Company or any of its Subsidiaries, so long as the Company notifies Parent thereof and uses reasonable efforts to allow for such access or disclosure to the maximum extent that does not result in implementing the provisions a loss of such privilege, or conduct any invasive environmental sampling or analysis. All requests for information made pursuant to this Section 5.2 so as not 7.3(a) shall be directed to the executive officer or other Person designated by the Company, and Parent shall not, directly or indirectly, contact any officer, director, employee, agent or representative of the Company or any of its Subsidiaries without the prior written approval (email being sufficient) of such designated Person. In an effort to prevent any interference or interfere with Parent’s disruption caused by such access, the Company may reasonably limit the number of individuals having access to, and Seller’s compliance with Section 5.1 hereofthe number of visits to, it facilities. All such information shall be governed by the terms of the Confidentiality Agreement.
(b) Following For a period of six (6) years following the Closing Date, each of Parent and Seller shall, and shall cause the Surviving Corporation to, retain all material books, Contracts, documents and records of the Company and its Affiliates to: (i) allow PurchaserSubsidiaries pertaining to all periods prior to the Closing. From and after the Closing Date, upon reasonable prior notice advance notice, Parent shall (and shall cause the Surviving Corporation to) afford the Stockholder Representative and any of its authorized Representatives reasonable access, during normal business hours, through its employees under the supervision of Parent’s designated personnel or Representatives and representatives, in such a manner as to not unreasonably interfere with the right, at Purchaser’s expenseoperations of Parent or the Surviving Corporation, to examine any employees, properties, books, contracts, documents and make copies records reasonably requested by the Stockholder Representative (i) in response to the request or at the direction of any records retained by Seller a Governmental Entity or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(hii) of the Code), including in connection with the preparation of Tax Returns or examination of Purchaser’s other documents related to Tax Returnsmatters; provided, regulatory filings and financial statements, but only that the foregoing shall not require Parent to the extent that such records disclose any privileged information of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller Surviving Corporation or any of their respective Affiliates for any reasonable purpose relating to the BusinessSubsidiaries, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as Parent notifies the party granting access shall have used its commercially Stockholder Representative thereof and uses reasonable efforts to provide allow for such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject disclosure to the applicable provisions maximum extent that does not result in a loss of Section 5.3such privilege.
Appears in 1 contract
Sources: Agreement and Plan of Merger (KAR Auction Services, Inc.)
Access and Information. (a) During From and after the period Closing Date and pending Closing, Seller will give to Buyer and to Buyer’s counsel, accountants and other representatives reasonable access between the Contract Date hours of 10:00 a.m. and the Closing Date6:30 p.m., Purchaser shall be entitledMonday through Saturday, through its employees and representatives and at its own expensesuch other times as the parties may mutually agree, to make such examination all of the Books properties, books, contracts, commitments, records, officers, personnel and Records accountants of the Business (including access to perform such environmental investigations as Purchaser the Buyer reasonably deems necessary at Buyer’s sole cost and expense), and will furnish to Buyer all such documents and copies of documents (certified to be true copies if requested) and all information with respect to the affairs of the Business as Buyer may reasonably request. Any investigation, examination or interview by Purchaser of employees of including any records of Seller and its Affiliates or access pursuant related to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours Rental Contracts, Accounts Receivable and upon reasonable prior notice to Seller; Business Employees, provided, however, that Seller shall be under no obligation to provide access to, or copies of, such actions by Purchaser shall not unreasonably interfere with documents or records which it is prohibited from disclosing to Buyer under applicable law. As soon as possible after the normal operation of the Business. Notwithstanding any other provisions execution of this Agreement, and, to the extent practicable in the case of a particular Specified Location, Assumed Location, Shared Location or Other Business Location, prior to any access by Buyer to the Business Employees as contemplated by the immediately preceding sentence or by Section 5.25.6, Purchaser and Seller the parties shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaserprovide a mutually agreed upon joint statement to the Business Employees regarding this Agreement and matters related thereto and (ii) at each Specified Location, upon reasonable prior notice Assumed Location, Shared Location and during normal Other Business Location, cause their representatives to jointly present their plans pursuant to this Agreement to the Business Employees (including with respect to interviews and hiring of Business Employees by Buyer and other elements of the business hourstransition). Buyer’s personnel shall have access to each Specified Location, through its Assumed Location, Shared Location and Other Business Location for an average of at least two business days per location in order to take any of the actions not prohibited by this Section 5.1, including but not limited to meeting with employees and representatives, selecting Business Merchandise which will become part of the right, at Purchaser’s expense, Rental Inventory to examine constitute Purchased Assets pursuant to Section 2.1(e)(ii). Each party understands and make copies agrees that any exchange of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary information under this Agreement shall be solely for the purpose of determining whether or seeking to consummate the transactions contemplated hereunder and under the Transaction Documents and not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)to affect, including the preparation or examination of Purchaserin any way, each party’s Tax Returns, regulatory filings and financial statements, but only relative competitive position to the extent other party or to other Persons. Each party further agrees that such records of Parent, Seller or any of their Affiliates relate the information to MONY or the Business; (ii) allow Purchaser be disclosed to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as each other shall only be that information which is reasonably necessary for to the purpose transactions contemplated hereby, and that information which is not reasonably necessary to such transactions shall not be disclosed or exchanged. To the extent competitively sensitive information such as information and strategies concerning product development or marketing plans, product prices or pricing plans, cost data, customers or similar information, including discussions of determining whether entry into or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Codewithdrawal from markets (“Competitively Sensitive Information”), regulatory and statutory filings and financial statements and the conduct of any litigation relating is determined to be reasonably necessary to the Business or otherwiseconsummation of a transaction, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates information shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or not be disclosed prior to the Closing. Access to such employees and records shall not unreasonably interfere with expiration or earlier termination of the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shallHSR Act waiting period, and shall cause its Affiliates to: (i) allow Seller, conditioned upon reasonable prior notice and during normal business hours, through their respective employees and representativesthere then being no pending or threatened action or inquiry from the Antitrust Division of the Department of Justice, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) Federal Trade Commission or (i)(B), in connection with the preparation any state antitrust enforcement or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers other governmental authorities with respect to the Insurance Contractstransactions contemplated hereby. In addition, the dissemination of Competitively Sensitive Information which has been determined to be reasonably necessary to the consummation of a transaction such as that contemplated by this Agreement shall be limited only to those senior executives and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement representatives of the Distributors as servicers parties who were involved in valuing or brokers of record for negotiating the Insurance Contracts. Purchaser shall promptly make any changes in transaction contemplated hereby and approving the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date value and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder consummation of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contracttransaction pursuant hereto.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During the period between from the date of this Agreement to the Closing, except to the extent prohibited by applicable Law or the terms of any Contract Date and entered into prior to the Closing Datedate hereof for which Parent has been unable, Purchaser shall be entitled, through despite use of its employees and representatives and at its own expensereasonable efforts, to make such examination obtain a consent or waiver from the other parties thereto (other than any Affiliate of the Books and Records Parent) to enable disclosure to ▇▇▇▇▇▇▇, or as Purchaser may would reasonably request. Any investigation, examination be expected to violate or interview by Purchaser of employees result in a loss or impairment of any attorney-client or work product privilege (it being understood that the parties shall use reasonable efforts to cause such information to be provided in a manner that does not result in such violation, loss or impairment), and subject to the obligations of Seller Shivers under the Confidentiality Agreement with respect thereto, Parent will permit (and will cause its Affiliates Subsidiaries to permit) the officers, directors, employees, representatives, consultants, advisors, accountants or agents (“Representatives”) of ▇▇▇▇▇▇▇ to have reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable notice to all premises, properties, personnel, books, records, Contracts, commitments, reports of examination, and documents of or pertaining to the Business, and reasonable opportunity upon prior notice and consultation with Parent to Sellercommunicate with Transferred Employees (provided that Parent shall have the right to be present by representative for all such contacts between ▇▇▇▇▇▇▇ and any such employee, whether in person, telephonic or otherwise), as may be necessary to permit ▇▇▇▇▇▇▇ to, at its sole expense, make, or cause to be made, such investigations thereof as are reasonably necessary in connection with the consummation of the Transactions, and Parent shall (and shall cause its Subsidiaries to) reasonably cooperate with any such investigations. No information or knowledge obtained in any investigation pursuant to this Section 5.1(a) or otherwise shall affect or be deemed to modify any representation or warranty contained herein or delivered pursuant hereto or to modify the conditions to the obligations of the parties hereto to consummate the Transactions.
(b) For a period of three (3) years after the Closing, upon reasonable notice, Parent shall afford to ▇▇▇▇▇▇▇ and its Representatives reasonable access during normal business hours to its books of account, financial and other records (including accountant’s work papers), information, employees and auditors to the extent reasonably necessary for ▇▇▇▇▇▇▇ to comply, respond or investigate in connection with any audit, investigation, dispute or litigation relating to the Systems; provided, however, that any such actions access by Purchaser Shivers shall not unreasonably interfere with the normal operation conduct of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent businesses or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each operations of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any Affiliates. ▇▇▇▇▇▇▇ will hold, and will cause its Representatives to hold, in confidence, all confidential or proprietary information to which it has had access to pursuant to this Section 5.1.
(c) For a period of three (3) years after the Closing, upon reasonable notice, ▇▇▇▇▇▇▇ shall cause SplitCo Sub to afford to Parent and its Representatives reasonable access during normal business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)hours to SplitCo Sub’s properties, including the preparation or examination of Purchaser’s Tax Returnsbooks, regulatory filings records, employees and financial statements, but only auditors to the extent that such records of Parent, Seller or reasonably necessary to permit Parent to determine any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose matter relating to the Business, including the preparation its rights and obligations (or examination those of Tax Returns (including as is reasonably necessary for the purpose of determining whether its Affiliates) hereunder or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of to any litigation relating to the Business period ending on or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of before the Closing Date, ; provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, furtherhowever, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records access by Parent shall not unreasonably interfere with the business conduct of the businesses or operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser SplitCo Sub or any of its Affiliates shallAffiliates. Parent will hold, whether directly and will cause its Representatives to hold, in confidence, all confidential or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract proprietary information to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of it has had access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.35.1.
Appears in 1 contract
Sources: Share Exchange Agreement (Mediacom Communications Corp)
Access and Information. (a) During From the period between date hereof until the Contract Date Closing, subject to reasonable rules, regulations and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination policies of the Books Company and Records as Purchaser may reasonably request. Any investigationany applicable Laws, examination or interview by Purchaser of employees of any of Seller the Company shall, and shall cause the Subsidiaries to, (i) afford Acquiror and its Affiliates representatives (including representatives of entities providing or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at arranging financing for Acquiror) reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to Sellerthe persons listed in Schedule 5.1(a) (“Employee Contacts”) to the Business, (ii) furnish or cause to be furnished to Acquiror any financial and operating data and other information that is available with respect to the Company and the Business as Acquiror from time to time reasonably requests, including internally-generated subscriber, accounts receivable and other operational reports with respect to the Business that are produced in the Ordinary Course, (iii) furnish or cause to be furnished to Acquiror any information relating to the Company or the Subsidiaries and such other assistance as is reasonably necessary to satisfy the periodic reporting obligations of Acquiror and its Affiliates and (iv) instruct such Employee Contacts and its counsel and financial advisors to reasonably cooperate with Acquiror in connection with the foregoing; provided, howeverthat in no event shall Acquiror have access to any information that (x) based on advice of Company’s counsel, that such actions by Purchaser shall not unreasonably interfere with would violate applicable Laws, including U.S. Antitrust Laws, or would destroy any legal privilege, or (y) in the normal operation Company’s reasonable judgment, would (A) result in the disclosure of any trade secrets or other proprietary or confidential information of third parties or (B) violate any obligation of the BusinessCompany, the Subsidiaries or any Affiliate of any of the foregoing with respect to confidentiality; provided that in each case the Company or the Subsidiaries shall have used commercially reasonable efforts to permit the disclosure of such information; it being understood that Acquiror shall reimburse the Company promptly for out-of-pocket reasonable expenses of the Company, the Subsidiaries or any of their Affiliates incurred in complying with any such request by or on behalf of Acquiror. Notwithstanding any other provisions of All information received pursuant to this Section 5.2, Purchaser and Seller 5.1(a) shall cooperate in implementing be governed by the provisions terms of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofthe Confidentiality Agreement.
(b) Following the Closing and until any applicable statute of limitations (including periods of waiver) has run, Acquiror shall retain all Books and Records in existence on the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including permitted by Law and confidentiality obligations existing as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, providedto grant to each Unit Holder and their representatives during regular business hours and subject to reasonable rules and regulations, that Seller may destroy the right, subject to such records Unit Holder reimbursing Acquiror, the Subsidiaries and any of their Affiliates for all out of pocket expenses incurred by them in its discretion following complying with any such request at the third anniversary expense of such Unit Holders, (i) to inspect and copy the Books and Records to the extent they relate to periods prior to the Closing Date after giving reasonable prior written notice and (ii) to Purchaser have personnel of its intent Acquiror made available to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation them or to maintain or retain any books and records otherwise cooperate to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (reasonably necessary, including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere in connection with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine preparing and make copiesfiling Tax Returns and/or any Tax inquiry, at Seller’s expenseaudit, investigation or dispute, or (B) any litigation or investigation. During the period from the date of this Agreement until the books date that is seven (7) years from the date of this Agreement, no Books and records of MONY to the extent Records relating to periods prior to the Closing Date shall be destroyed by Acquiror without first advising the Unit Holders in writing and giving such Unit Holders a reasonable opportunity to obtain possession thereof at such Unit Holders’ expense.
(Bc) interview Purchaser’s and its Affiliates’ employeesPrior to the Closing, in Acquiror shall use all subscriber information (as hereinafter defined) that was obtained prior to the case Closing from the Company, the Subsidiaries or any Affiliate of either clause (i)(A) or (i)(B), any of the foregoing in connection with the preparation or examination Sale Process only in compliance with Sections 222 and 631 of Tax Returnsthe Communications Act and all other Laws governing the use, regulatory collection, disclosure and statutory filings storage of such information. For purposes hereof, “subscriber information” means personally identifiable information pertaining to customers, including names, telephone numbers, e-mail and financial statements; billing addresses, credit card numbers and expiration dates and bank account numbers and routing numbers.
(iid) maintain such books The Company hereby agrees to use its reasonable best efforts to obtain and records for Seller’s examination and copying deliver to Acquiror a copy of the letter agreement substantially in the circumstances contemplated form attached hereto as Exhibit G duly executed and delivered by clause each of Net2Phone Cable Telephony, LLC and Net2Phone, Inc. (ithe “Confirmation Letter”), which confirms the Company’s and Acquiror’s understanding of the way in which the Cable Telephony Production Agreement, dated November 3, 2004, by and among Bresnan Communications, LLC, Net2Phone Cable Telephony, LLC and Net2Phone, Inc. (the “Net2Phone Agreement”) above. Purchaser shall maintain operates, as soon as possible and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of in no event later than the Closing Date, ; provided, however, that Purchaser may destroy the requirement to use such books reasonable best efforts shall not require the Company to pay fees in order to obtain the executed Confirmation Letter.
(e) The Company will render, and records in its discretion following cause the third anniversary of Subsidiaries to render, all access and assistance requested by Acquiror that would be necessary or desirable to enable the Company and the Subsidiaries to be able to provide telephony services from and after the Closing Date other than through the services provided pursuant to the Net2Phone Agreement, including (but only on and after giving reasonable prior written notice to Seller the 61st day after the date of its intent to destroy this Agreement) installation by Acquiror of equipment at their properties and facilities; provided, however, that Acquiror shall reimburse the Company and the Subsidiaries for all out-of-pocket expenses reasonably incurred by them in connection therewith and such documents. Access to such employees assistance shall be rendered at times and books and records shall in a manner that does not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms conduct of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide Business by the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date Company and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractSubsidiaries.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Cablevision Systems Corp /Ny)
Access and Information. (a) During From and after the period between the Contract Date date of this Agreement and until the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, subject in all respects to make such examination their compliance with the terms of the Books and Records as Purchaser may reasonably request. Any investigationExisting Non-Disclosure Agreement, examination or interview by Purchaser of employees of any of Seller shall give to Buyer and its Affiliates or Affiliates, and their respective officers, employees, accountants, counsel and other representatives, reasonable access pursuant during Seller’s normal operating hours to any the Property (and shall coordinate with FRMC in order to ensure FRMC likewise provides Buyer with access to the same), books, contracts, commitments, reports of examination and records relating exclusively to the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours Foundry Operation, the Foundry Operation Employees, the Purchased Assets, the Real Property and upon reasonable prior notice to Sellerthe Assumed Liabilities; provided, however, in each case that, if requested by Seller, Buyer and its Affiliates, and their respective officers, employees, accountants, counsel and other representatives shall be accompanied at all times by a person designated by Seller, including without limitation Seller’s legal counsel. Seller shall reasonably assist Buyer and its Affiliates, and their respective officers, employees, accountants, counsel and other representatives, in making such investigation and shall cause its counsel, accountants, engineers, consultants and other non-employee representatives to be reasonably available to any of them for such purposes, provided that such actions by Purchaser Buyer shall not unreasonably interfere with the normal operation of the Businessreimburse Seller for any out-of-pocket costs arising therefrom. Notwithstanding any other provisions Subsequent to mutual execution of this Section 5.2Agreement, Purchaser Buyer and Seller shall cooperate jointly work together in implementing good faith to prepare and/or revise, prior to the provisions Closing, any of the exhibits and schedules attached to this Section 5.2 so as Agreement to the mutual satisfaction of both, it being acknowledged and agreed that such documents may not be in final form. Seller shall appoint a financial representative, and make its best efforts, to prevent or interfere assist Buyer with ParentBuyer’s reasonable requests for additional financial information concerning the Foundry Operation during the period beginning on the Effective Date and Seller’s compliance with Section 5.1 hereof.
(b) Following ending on the date which is 45 days after the Closing Date, each all as necessary to complete an audit of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, Seller’s financials concerning the right, at PurchaserFoundry Operation in order to complete Buyer’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose required SEC filing (including as pursuant to S▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ 210.3-05 - Financial statements of businesses acquired or to be acquired) which is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of due no later than 70 calendar days after the Closing Date. Buyer agrees to engage an accounting consultant at its sole cost to determine if the Buyer can be reasonably successful in seeking a waiver from the SEC for audited historical financial statements for the Seller, providedalthough Buyer and Seller acknowledge and agree that there shall be no guarantee that the SEC will approve the waiver, that Seller may destroy such records if submitted in its Buyer’s reasonable discretion following based on the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals advice of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesaccounting consultants.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Asset Purchase Agreement (Akoustis Technologies, Inc.)
Access and Information. (a) During Upon reasonable prior notice and subject to Applicable Law, the period between Company shall, and shall cause the Contract Date and the Closing DateCompany Subsidiaries to, Purchaser shall be entitled, through its employees and representatives and at its own expense, afford to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Parent and its Affiliates financial advisors, legal counsel, financing sources, accountant or other advisor, agent or authorized representative (collectively, "Representatives") reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable without undue disruption of normal business activity throughout the period prior notice to Seller; providedthe Effective Time to all of its books, howeverrecords, that properties, premises, personnel and advisors during such actions by Purchaser period and shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shallfurnish, and shall cause its Affiliates to: to be furnished, as promptly as reasonably practicable to Parent, (a) a copy of each report, schedule and other document filed or received by the Company or any Company Subsidiary pursuant to the requirements of the federal securities laws or a Governmental Entity, except, with respect to examination reports, as is restricted by Applicable Law, and (b) all other information as Parent reasonably may request; provided that the Company and the Company Subsidiaries shall not be obligated to disclose (A) any competitively sensitive information or (B) any information that, in the reasonable judgment of outside counsel to the Company, would result in the loss of attorney-client privilege with respect to such information. The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, upon obtaining knowledge of (i) allow Purchaser, upon reasonable prior any notice and during normal business hours, through its employees and representativesor other communication received by such party from any Governmental Entity in connection with this Agreement, the rightMerger or the transactions contemplated hereby, at Purchaser’s expenseor from any person alleging that the consent of such person is or may be required in connection with the Merger or the transactions contemplated hereby, (ii) any suits, actions, proceedings or investigations commenced or, to examine and make copies of any records retained by Seller such party's knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates subsidiaries which relate to MONY this Agreement, the Merger or the Business; (ii) allow Purchaser to interview employees of Parenttransactions contemplated hereby, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Dateany event, providedoccurrence, fact, condition, change, development or effect known to it that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONYa) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) the Company, individually or (i)(B)taken together with all other events, in connection with the preparation occurrences, facts, conditions, changes, developments or examination of Tax Returnseffects known to it, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Datehas had, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result have, individually or in the replacement of the Distributors as servicers aggregate, a Company Material Adverse Effect and (b) would cause or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Lawconstitute, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as cause or constitute, a breach in any material respect of any of such person's representations, warranties, covenants or agreements contained herein. Notwithstanding the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provideforegoing, or cause its Affiliates to provide, neither any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party investigation pursuant to this Section 5.2(f). Any information provided 8.1 nor the delivery of any notice pursuant to this Section 5.2 8.1 shall be subject limit or otherwise affect any remedies available to Parent or the Company, as applicable, or prevent or cure any misrepresentations, breach of warranty or breach of covenant or the conditions to the applicable provisions obligations of Section 5.3the parties under this Agreement. Each party shall continue to abide by the terms of the confidentiality agreement between Sun Capital Partners Group IV, Inc. and the Company, dated March 30, 2007 (the "Confidentiality Agreement").
Appears in 1 contract
Access and Information. (a) During the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information give to Buyer and its officers, employees, accountants, counsel, financial advisors, and other representatives, during Seller's or the applicable Affiliate's normal business hours throughout the period prior to the Closing, access as reasonably requested to all of Seller's or the applicable Affiliate's offices, books, contracts, commitments, reports of examination and records (excluding personnel and medical records) primarily relating to the Insurance Contracts Business or the holders of Purchased Assets (but excluding the Insurance Contracts only for the purpose of servicing customers with respect Excluded Assets and Excluded Liabilities and subject to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating limitations that are reasonably required to compliance by Parent, Seller preserve any applicable attorney- client privilege or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the BusinessThird-Party confidentiality obligation). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use assist and cooperate with Buyer Access Parties in making such investigation and shall cause its employees, counsel, accountants, engineers, consultants and other non-employee representatives to be reasonably available to Buyer Access Parties for such purposes and shall furnish to Buyer Access Parties such financial and operating data and other information relating to the Business only as such Persons may reasonably request. Seller agrees to provide the Financing Entities with such financial and operating data (including information to complete schedules for agreements providing for the purpose Financing) as they may reasonably request. No investigation by Buyer Access Parties or other information received by Buyer Access Parties shall operate as a waiver of complyingany representation or warranty made by Seller hereunder. Buyer agrees to promptly notify Seller of any facts or circumstances which may reasonably be expected to result in the Financing not being available on the Closing Date and to keep Seller reasonably informed of its activities with respect to the Financing.
(b) Throughout the period prior to closing, Buyer shall promptly notify Seller and its counsel and financial advisors of any change in facts or causing its applicable Affiliates circumstances that may reasonably be expected to comply, with their respective obligations under this Agreement and result in any conditions set forth in any Commitment Letter not being satisfied or otherwise result in Seller not having the Distribution Agreements Required Amount on the Closing Date.
(including any purpose relating to compliance by Parentc) After the Closing Date, Seller or any of and Buyer shall, and shall cause their respective Affiliates with any Applicable Lawto, or provide to dealings with any Governmental Authority, relating each other and to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliatesofficers, mayemployees, from counsel and after the Contract Date other representatives, upon request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege or as promptly thereafter as is reasonably practicableThird-Party confidentiality obligation), include reasonable access for inspection and copying of all Business Records, Licenses, Contracts, books of account, financial records, including accountants work papers, and any other information relating to the Insurance Contracts Business existing as of the Closing Date or the Purchased Assets, and shall make their respective personnel reasonably available for interviews, depositions and testimony in any “data mining” program legal matter concerning transactions contemplated by this Agreement, the operations or process activities relating to the Business or the Purchased Assets and as otherwise may be necessary or desirable to enable the party requesting such assistance to: (i) comply with any reporting, filing or other requirements imposed by any Governmental Body; (ii) assert or defend any claims or allegations in any litigation or arbitration or in any administrative or legal proceeding, other than claims or allegations that is designed one party to this Agreement has asserted against the other; or intended (iii) subject to identify any holder of an Insurance Contract clause (ii) above, perform its obligations under this Agreement. The party requesting such information or assistance shall reimburse the other party for targeted marketing or solicitation of other products offered, distributed or administered all reasonable and necessary out-of-pocket costs and expenses incurred by such Person; provided thatparty in providing such information and in rendering such assistance. The access to files, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, books and records contemplated by this Section 5.1(c) shall be prohibited from including during normal business hours and upon reasonable prior notice and shall be subject to such reasonable limitations as the party having custody or control thereof may impose to preserve the confidentiality of information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractcontained therein.
(fd) Anything Buyer shall preserve all Business Records for at least seven (7) years after the Closing Date. After this seven-year period and at least ninety (90) days prior to the planned destruction of any Business Records, Buyer shall notify Seller in writing and shall make available to Seller for a period of 60 days, upon its request, such Business Records. Buyer further agrees that, to the extent Business Records are placed in storage, they will be indexed in such a manner as to make individual document retrieval possible in an expeditious manner.
(e) Notwithstanding anything to the contrary in this Section 5.2(a)5.1, Buyer and Seller agree to furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the Business and the Purchased Assets (b)including, (c)without limitation, (daccess to books and records) or (e) notwithstandingas is reasonably necessary for the filing of all Tax returns, the party granting access may withhold making of any document (or portions thereof) or information (i) that is subject election relating to Taxes, the terms of a non-disclosure agreement with a third partypreparation for any audit by any taxing authority, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, prosecution or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver defense of any such privilege claim, suit or (iii) if the provision of access proceeding relating to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access any Tax. Buyer and Seller shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access retain all books and its Affiliates records with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject Taxes pertaining to the applicable provisions Purchased Assets for a period of Section 5.3at least seven years following the Closing Date. At the end of such period, each party shall provide the other with at least ninety days prior written notice before destroying any such books and records, during which period the party receiving such notice can elect to take possession, at its own expense, of such books and records. Seller and Buyer shall cooperate with each other in the conduct of any audit or other proceeding relating to Taxes involving the Purchased Assets or the Business.
Appears in 1 contract
Sources: Asset Purchase Agreement (CSG Systems International Inc)
Access and Information. (a) During 6.1.1 Prior to the period between Closing, the Contract Date Purchasers shall be entitled to make or cause to be made such investigation of the Consolidated Companies, including environmental testing, including the testing of soil, water and air and other samples, and the Closing Datefinancial and legal condition thereof, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination as each of the Books Purchasers deems necessary or advisable, and Records as Purchaser may reasonably request. Any the Corporations and the Sellers shall cooperate with any such investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain any such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available environmental testing on properties leased to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary any of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser Consolidated Companies or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, testing shall be prohibited from including information relating to insurance or annuity Contracts not included in the Businessconducted, and any holder thereofif at all, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partythe applicable lease. In furtherance of the foregoing, but not in limitation thereof, the Sellers and the Corporations shall (a) permit the Purchasers and their agents and representatives or cause them to be permitted to have full and complete access to the premises, books and records of the Consolidated Companies upon reasonable not ice during regular business hours, (iib) that may constitute privileged attorney-client communications furnish or attorney work product cause to be furnished to the Purchasers such financial and operating data, projections, forecasts, business plans, strategic plans and other data relating to the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long Consolidated Companies as the party granting access Purchasers shall have used its commercially reasonable efforts request from time to provide time and (c) cause their accountants (subject to the execution of such information without violation of Applicable Law. The party granting access documents as shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so be reasonably requested by such accountants) to furnish to the party granting accessPurchasers and the Purchasers' accountants access to all work papers relating to the Consolidated Companies for any of the periods covered by any financial statements delivered to the Purchasers pursuant to this Agreement. Prior to the Closing, the other party Purchasers shall enter into a customary joint defense agreement with the party granting access not (and its Affiliates with respect to shall cause their Subsidiaries not to) use any information provided to such other party obtained pursuant to this Section 5.2(f)6.1 for any purpose unrelated to the transactions described in this Agreement, except to the extent required by law. Any information provided Except with respect to publicly available documents, in the event that this Agreement is terminated, th e Purchasers will deliver to the Parent Seller all documents obtained by the Purchasers from the Consolidated Companies or the Sellers in confidence and any copies thereof in the possession of the Purchasers or their agents and representatives or, at the option of the Purchasers, the Purchasers shall cause all of such documents and all of such copies to be destroyed and the Purchasers shall certify the destruction thereof to the Corporations and the Sellers.
6.1.2 No investigation by either party of the other heretofore or hereafter made shall modify or otherwise affect (a) any representations and warranties of the Corporations or the Sellers on the one hand, or of the Purchasers on the other hand, made pursuant to this Section 5.2 Agreement, which representations and warranties shall be subject survive any such investigation to the applicable provisions extent provided herein, or (b) the conditions to the obligations of Section 5.3the Purchasers or the Sellers to consummate the transactions contemplated hereby.
Appears in 1 contract
Access and Information. (a) During the period between the Contract Date and Prior to the Closing Date, Purchaser shall Buyer will be entitled, through its employees and representatives and at its own expenseRepresentatives, to make such examination investigation of the Books Business and Records as Purchaser may reasonably request. Any investigationthe properties, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any assets, the senior management personnel of the provisions Business set forth on Schedule 5.2(a), facilities, contracts, books and records, and other documents and data of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours the Foreign Companies and upon reasonable prior notice the Contributor Sellers that relate to Sellerthe Business as Buyer reasonably requests and to make extracts and copies of such books and records; provided, however, provided that such actions by Purchaser shall examination will not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: include (i) allow Purchaserinformation that, upon reasonable prior notice and during normal business hoursif provided to Buyer, through its employees and representativeswould violate applicable Laws, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser bids, letters of intent, expressions of interest or other proposals received from others in connection with the transactions contemplated by this Agreement or information or analyses relating to interview employees such communications, (iii) any information, the disclosure of Parent, Seller which would jeopardize any legal privilege available to the Company Group or any of their respective Affiliates for any reasonable purpose relating to such information, or (iv) any internal valuations of the Acquired Companies, the Business or the Interests or information or analyses relating to such valuations. Any such investigation and examination will be conducted during regular business hours and under commercially reasonable circumstances and will be subject to restrictions reasonably imposed by the Company Group or otherwise under applicable Laws. Sellers will, and will cause their respective Representatives to, reasonably cooperate with Buyer and its Representatives in connection with such investigation and examination, and Buyer will, and will cause its Representatives to, reasonably cooperate with Sellers and their respective Representatives and use commercially reasonable efforts to minimize any disruption to the businesses of Sellers and the Acquired Companies. Buyer will, and will cause its Representatives to, abide by any safety rules or rules of conduct reasonably imposed by Sellers or any operator of properties or assets of the Business, including as the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of case may be, in connection with access provided pursuant to this Section 817(h) of the Code5.2(a). Upon reasonable advance written notice from Buyer to Sellers, regulatory and statutory filings and financial statements and the conduct of any litigation relating prior to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy Buyer shall be afforded the right to meet with Material Customers and Material Suppliers at such records times and in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller manner as reasonably agreed by Buyer and its Affiliates shall have no obligation to maintain or retain any books and records Sellers. Notwithstanding anything to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or contrary contained herein, prior to the Closing. Access , without the prior written consent of Sellers (which may be withheld for any reason), Buyer will have no right to such employees and records shall not unreasonably interfere with perform invasive or subsurface investigations of the business operations properties of Seller or its Affiliatesany member of the Company Group.
(cb) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: For a period of six (i6) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date years after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shallwithout the prior written consent of Sellers, Buyer will not, and shall will cause its the Acquired Companies and their controlled Affiliates not to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in without the last sentence prior written consent of this Section 5.2(e) or in Section 5.14(f)Buyer, each of Parent and Seller shallSellers will not, and shall will cause its Affiliates the Change Group not to, use information relating dispose of or destroy any of the books and records related to the Business only in respect of periods prior to the Closing Date (the “Applicable Records”) that (x) may be relevant to any legal, regulatory, or tax audit, investigation, inquiry, or requirement, or the prosecution or defense of third party claims, settlements or investigations, in each case solely to the extent related to a pre-Closing period (collectively, an “Applicable Legal Purpose”) of the other party, or (y) in the case of Applicable Records held by Sellers or their Affiliates, constitute TSA Information. In addition, during such six-year period, (a) Buyer will cause the Acquired Companies to make available to Sellers and their Representatives, and (b) Sellers will, and will cause the Change Group to, make available to Buyer and its Representatives, such Applicable Records in the possession of the disclosing party pursuant to a prior written request of the requesting party, as may be reasonably requested by the requesting party in connection with any Applicable Legal Purpose, or, in the case of any TSA Information held by Sellers or their Affiliates, in connection with any proper business purpose (such availability shall be during normal business hours provided such access does not interrupt the Business). Notwithstanding the foregoing or anything else herein to the contrary, no Party will have any obligation to provide access to any Applicable Records pursuant to this Section 5.2(b) (i) to the extent that such access would be likely to result in the loss of any attorney-client privilege, except to the extent that such privilege may be preserved by entering into a common interest or similar agreement for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by preserving such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third partyprivilege, (ii) to the extent that may constitute privileged attorney-client communications such access would contravene or attorney work product and the transfer of whichviolate any applicable Law or Contract, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall matter or potential or actual claim or Proceeding that may be subject adverse to the applicable provisions of Section 5.3disclosing party.
Appears in 1 contract
Access and Information. (a) During From the period between the Contract Date and date hereof until the Closing Date, Purchaser subject to any applicable Law and subject to any applicable privileges (including the attorney-client privilege), trade secrets, and contractual confidentiality obligations, upon reasonable prior notice, Seller shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller afford Buyer and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at Representatives reasonable times access, during normal business hours hours, to the books and upon reasonable prior notice records, offices and properties of the Company, furnish to SellerBuyer such additional financial and operational data and other information regarding the Company as Buyer may from time to time reasonably request and make reasonably available to Buyer the employees of the Company, Seller or its Affiliates whose assistance and expertise is necessary to assist Buyer in connection with Buyer’s preparation to integrate the Company into Buyer’s organization following the Closing; provided, however, that such actions by Purchaser shall Buyer will not unreasonably interfere be entitled to (i) any information relating to bids received from others in connection with the normal operation transactions contemplated by the Transaction Documents and information and analysis (including financial analysis) relating to such bids, (ii) any information the disclosure of which would jeopardize any privilege available to Seller, the BusinessCompany or their respective Affiliates, (iii) any information the disclosure of which would cause Seller, the Company or their respective Affiliates to breach a confidentiality obligation or (iv) any information the disclosure of which would result in a violation of Law. Notwithstanding any other provisions of this Section 5.2, Purchaser Any such access or requests shall (x) be supervised by such Persons as may be designated by Seller and Seller shall cooperate (y) be conducted in implementing the provisions of this Section 5.2 such a manner so as not to prevent or unreasonably interfere with Parent’s and any of the businesses or operations of Seller’s compliance with Section 5.1 hereof.
(b) Following , the Closing Date, each of Parent and Seller shall, Company or their respective Affiliates and shall cause its Affiliates to: not contravene any applicable Law; provided further, however, that Seller and the Company will make appropriate substitute disclosure arrangements, if available, under circumstances in which the restrictions of the foregoing provision apply (other than with respect to the restrictions in clause (i) allow Purchaserabove). Buyer shall not conduct any sampling, upon reasonable boring, drilling or other invasive investigation activities on any property owned, leased or used by the Company without the prior notice written consent of Seller. All requests for information made pursuant to this Section 6.1(a) shall be directed to such Person or Persons as may be designated by Seller, and during normal business hours, through its employees and representativesBuyer shall not directly or indirectly contact any Representative of Seller, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller Company or any of their respective Affiliates for without the prior approval of such designated Person or Persons. Buyer further agrees to comply fully with all rules, regulations and instructions issued by Seller, the Company and their respective Affiliates or other Persons in respect of Buyer’s or its Representatives’ actions while upon, entering or leaving any properties of Seller or the Company. Buyer acknowledges and agrees that any information received in connection with this Section 6.1(a) will be subject to the terms and conditions of the Confidentiality Agreement.
(b) From and after the Closing, in connection with any reasonable business purpose relating (other than in connection with any dispute between Seller or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand), including (i) in response to the Businessrequest or at the direction of a Government Entity, including (ii) the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process documents related to Tax matters and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary determination of any matter relating to the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary rights or obligations of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates under this Agreement or any other Transaction Document (including matters contemplated by Section 2.4), subject to any applicable Law and any applicable privileges (including the attorney-client privilege) and contractual confidentiality obligations, upon reasonable prior notice, Buyer shall have no obligation (A) afford Seller and its Representatives reasonable access, during normal business hours, to maintain or retain any books the books, data, files, information and records of Buyer and its Affiliates (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (B) furnish to Seller such additional financial and other information as Seller may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), in each case to the extent that electronic or paper copies or originals of such books and records are delivered relating to Purchaser or any of its Affiliates (including MONY) at the Company for periods ending on or prior to the Closing. Access Closing Date; provided, however, such information shall be limited to that required or reasonably necessary in connection with such employees reasonable business purpose and records shall be provided at the sole cost and expense of Seller; provided further, however, that such access or request shall not unreasonably interfere with the business or operations of Seller Buyer or any of its Affiliates.
(c) Following For 180 days following the Closing Date, Purchaser shall, Seller shall coordinate and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice cooperate fully with Buyer in exchanging such information and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesproviding such assistance, in each case on a timely basis, as Buyer may reasonably request and at the case sole cost and expense of either clause (i)(A) or (i)(B)Buyer, in connection with the preparation and submission of any reports and filings to Government Entities as required under or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available pursuant to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its AffiliatesEnvironmental Laws.
(d) Following Buyer hereby agrees to defend, indemnify and hold harmless each of the Closing DateSeller Indemnified Parties from and against any and all Losses attributable to personal injury, Purchaser shalldeath or physical or other property damage, and shall cause or violation of Seller’s or its Affiliates toAffiliate’s or any third Person operator’s rules, provide such information regulations or operating policies of which Buyer or its Representatives associated with the Losses had been informed in advance in writing, to the Affiliated Distributors that are parties extent arising out of, resulting from or relating to the Distribution Agreementsactions of Buyer or its Representatives in connection with any field visit, in accordance with the terms environmental property assessment, sampling, boring, drilling or other invasive investigation activities or other due diligence activity conducted by Buyer or any of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers its Representatives with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date Company and the Closing DateCompany Systems, each of Parent and Seller shallEVEN IF SUCH LOSSES ARISE OUT OF OR RESULT FROM, and shall cause its Affiliates toSOLELY OR IN PART, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by ParentTHE SOLE, Seller or any of their respective Affiliates with any Applicable LawACTIVE, or to dealings with any Governmental AuthorityPASSIVE, relating to the ownershipCONCURRENT OR COMPARATIVE NEGLIGENCE, operation or administration of the Business). Following the Closing DateSTRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY OF THE SELLER INDEMNIFIED PARTIES, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements andEXCEPTING ONLY LOSSES ACTUALLY RESULTING ON ACCOUNT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE SELLER INDEMNIFIED PARTIES; provided, for the avoidance of doubt, Purchaser the Parties agree that in no event shall not make such information available any Seller Indemnified Party be entitled to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only indemnification by Buyer for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver Losses arising out of any such privilege preexisting environmental contamination or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable noncompliance with Environmental Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP)
Access and Information. (a) During Upon reasonable notice, Seller shall grant, or cause to be granted to, Buyer, Parent and their Representatives, financing sources and other Representatives, during the period between the Contract date of this Agreement and the Closing Date (the “Due Diligence Period”), reasonable access during normal business hours to the Purchased Assets, the AAE Purchased Assets and the Books and Records and other information of Seller and the Acquired Aether Entities relating exclusively to the operations of the Business or of the Acquired Aether Entities. From the date of this Agreement through the Closing Date, Purchaser Seller shall use commercially reasonable efforts to furnish, or cause to be entitled, through its employees and representatives and at its own expensefurnished, to make such examination of Buyer all data and information concerning the Books Purchased Assets, the AAE Purchased Assets and Records as Purchaser the Business which may reasonably request. Any investigation, examination or interview be requested by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, Buyer and shall cause its Affiliates to: (i) allow Purchaser, upon use all commercially reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, efforts to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwiseavailable, or the conduct of any regulatorycause to be made available, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations personnel of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and Acquired Aether Entities as may reasonably be requested for the furnishing of such data. Buyer shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the have a right to (A) examine and make copies, at designate certain of its Representatives as a transition team which may work from Seller’s expense, premises in order to facilitate the orderly transfer of the books and records of MONY Business to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, Buyer in accordance with the terms of the Distribution Agreements, as is necessary this Agreement. Such transition team shall be given reasonable access to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, Seller’s management and none other Representatives of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered through attendance by such Person; provided that, notwithstanding management and Representatives at meetings with the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, transition team. Seller shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used use its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement arrange due diligence calls with the party granting access Major Customers and its Affiliates with respect Major Suppliers (in which the Seller shall participate) the purpose of which will be to any information provided allow Seller to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to confirm the applicable provisions existence and status of Section 5.3Material Contracts.
Appears in 1 contract
Sources: Purchase Agreement (Telecommunication Systems Inc /Fa/)
Access and Information. (a) During Prior to the period between Closing, Buyer shall be entitled to make or cause to be made such reasonable investigation of the Contract Date Business and the Closing DateFacility as Buyer deems necessary or advisable, Purchaser and Seller and the Company shall be entitledcooperate with any such investigation. In furtherance of the foregoing, through but not in limitation thereof, Seller and the Company shall permit Buyer and its employees agents and representatives to have reasonable and at its own expense, continued access to make such examination all applicable premises and books and records of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times Company during normal regular business hours and upon reasonable prior notice shall furnish such financial and operating data (including, but not limited to, projections, forecasts, business plans, strategic plans and other data relating to Sellerthe Business as Buyer shall reasonably request from time to time); provided, however, the Company shall be under no obligation to deliver to Buyer any information in violation of any non-disclosure or confidentiality agreement (but shall be required to disclose to Buyer the type of information not being so provided). Buyer’s access shall include, and not be limited to, the Company permitting a Buyer representative to be present at the Facility during all normal business hours provided that such actions by Purchaser shall Buyer representative does not unreasonably interfere with the normal operation operations of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior Prior to the Closing. Access to such employees and records , Buyer shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party obtained pursuant to this Section 5.2(f). Any 6.01 for any purpose unrelated to the consummation of the Transaction and, if such transactions are not consummated, it will hold all information provided and documents obtained pursuant to this Section 5.2 shall 6.01 in confidence unless and until such time as such information or documents otherwise become publicly available or unless it is advised by counsel that any such information or document is required by Law to be subject disclosed. In the event that this Agreement is terminated, Buyer will deliver to the applicable provisions Company all documents so obtained by it and any copies thereof in the possession of Section 5.3Buyer or its agents and representatives or, at the option of the Company, Buyer shall cause all of such documents and all of such copies to be destroyed and shall certify the destruction thereof to the Company. No investigation by Buyer heretofore or hereafter made shall modify or otherwise affect any representations and warranties of Seller or the Company, which shall survive any such investigation; provided however, that Buyer has provided to Seller copies of its accountants’ report and its environmental reports which Seller may attach to its disclosure schedules.
Appears in 1 contract
Sources: Stock Purchase Agreement (Photonic Products Group Inc)
Access and Information. (a) During From the period between date of this Agreement until the Contract Date and earlier of the Closing DateDate or termination of this Agreement in accordance with its terms, Purchaser shall be entitled, through its employees and representatives and at its own expense, subject to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions terms of this Section 5.2 6.2 and the confidentiality obligations set forth in the Confidentiality Agreement and any applicable Law (including any Antitrust Law), Seller shall, and shall be conducted or occur at cause the Company and its Subsidiaries to, and shall direct its Representatives to (A) afford Buyer and its Representatives reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to Sellerthe key employees of the Company and its Subsidiaries, the Books and Records, books and records of Seller (or true and complete copies thereof) solely to the extent related to the Company, the Contracts, the assets and properties of the Company and its Subsidiaries and the key employees and Representatives of Seller who have knowledge relating directly to the Company and its business (including the Schedule 8.2(a)(vi) Matter), (B) furnish, or cause to be furnished, to Buyer and its Affiliates and Representatives any financial and operating data and other information that is within the possession or control of Seller and its Representatives with respect to the Company or its business as Buyer and its Affiliates and Representatives from time to time may reasonably request, and (C) instruct the employees of the Company and its Subsidiaries and the employees and Representatives of Seller and the Company who have knowledge relating directly to the Company and its business to cooperate reasonably with Buyer and its Representatives in their investigation of the Company and its business; provided, however, that in no event shall such actions by Purchaser access extend to any sampling or analysis of soil, groundwater, building materials or other environmental media of the sort generally referred to as a Phase II environmental investigation without the prior written consent of Seller, which consent shall not be unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shallwithheld, and that in no event shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller Buyer or any of its Affiliates for Representatives have access to any reasonable business purpose information if allowing that access (including as is reasonably necessary for the purpose x) based on advice of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only counsel to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement loss of the Distributors as servicers work product protection or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes attorney-client privilege, or (y) would in the servicer reasonable judgment of Seller (A) result in the disclosure of any material Trade Secrets, unless the applicable information is reasonably necessary for integration purposes and then only if it does not involve the furnishing of information about sensitive fiduciary matters, or broker (B) violate any obligation of record Seller with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record confidentiality so long as, with respect to confidentiality, Seller has sought to obtain a waiver regarding the Businesspossible disclosure from the third party to whom it owes an obligation of confidentiality; provided, unless further, that any such access shall be conducted in a manner not to interfere with the opinion business and operation of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of Company and its Affiliates (including MONY) is a partySubsidiaries.
(eb) Except as set forth in Between the last sentence date hereof and the earlier of this Section 5.2(e) or in Section 5.14(f), between the Contract Closing Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and date on which this Agreement is terminated in accordance with past practices (including any purpose relating to compliance by Parentits terms, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (iithis Section 6.2(b) that may constitute privileged attorney-client communications or attorney work product and the transfer confidentiality obligations set forth in the Confidentiality Agreement and this Agreement and any applicable Law (including any Antitrust Law), Seller shall provide to Buyer on a monthly basis as promptly as they become available copies of which, or all regularly prepared monthly financial statements and reports on the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access Company and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions Subsidiaries, including statements of Section 5.3operations and balance sheets.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Bank Jos a Clothiers Inc /De/)
Access and Information. (a) During From the period between date hereof to the Contract Date and the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller Sellers shall, and shall cause each Company to, afford to Purchaser and its Affiliates to: (i) allow Purchaserofficers, employees, accountants, consultants, legal counsel, financing sources and other representatives, upon reasonable prior notice and notice, reasonable access during normal business hourshours to (i) the management and key employees of the Companies and (ii) the business, through its employees properties, contracts and representatives, records of the right, at Purchaser’s expense, to examine Companies and make copies of any records retained by Seller or all information concerning any of its Affiliates for any reasonable the foregoing and employees of the Companies as Purchaser may reasonably request to conduct such examination and investigation of the business purpose (including and business assets as is reasonably necessary for the purpose of determining whether or consummating the transactions contemplated by this Agreement, including using reasonable efforts to permit Purchaser to conduct any reasonable environmental investigations at the Leased Real Property; provided that that: (x) such examination and investigation shall be conducted at times and in a manner that does not an Insurance Contract has met unreasonably interfere with the diversification requirements of Section 817(h) operation of the Code)Companies’ respective businesses, including the preparation and (y) if any such examination or examination investigation results in damage to or alteration of any land or other premises, Purchaser (at Purchaser’s Tax Returnsexpense) shall restore the same to substantially the condition as existed prior to such examination or investigation.
(b) Until the fifth anniversary of the Closing, regulatory filings Purchaser shall permit Sellers and financial statementstheir Affiliates and representatives (collectively, but only the “Seller Parties”) to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to Purchaser, to the books, records and personnel relating to the business of the Companies, to the extent that such records access may be reasonably required in connection with (i) the preparation of Parentany Seller’s Tax returns or with any audit thereof, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser any Seller Party’s financial reporting related to interview employees the operations of Parentthe Companies prior to the Closing, Seller or (iii) any of their respective Affiliates for any reasonable purpose suit, claim, action, proceeding, investigation or regulatory filing relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) operation of the Code), regulatory and statutory filings and financial statements and business of the conduct of any litigation relating Companies prior to the Business or otherwise, or the conduct of Closing; provided that any regulatory, customer or other dispute resolution process such Seller Parties shall reimburse Purchaser promptly for all reasonable out-of-pocket costs and (iii) maintain expenses incurred by Purchaser in connection with any such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records request. Purchaser shall attempt in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation good faith to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) in an easily accessible format and at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesaccessible locations.
(c) Following the Closing DateClosing, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesemployees to, in the case of either clause (i)(A) or (i)(B)at any Seller’s reasonable request, cooperate with Sellers as may be reasonably required in connection with the preparation or examination of Tax Returns, regulatory investigation and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms defense of any Contract to which Purchaser suit, claim, action, proceeding or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information investigation relating to the Insurance Contracts or the holders business of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including Companies that is brought against any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with at any Applicable Law, or to dealings with any Governmental Authority, relating to time after the ownership, operation or administration of the Business). Following the Closing Date, (i) Closing; provided that Sellers shall reimburse Purchaser shall, for all reasonable out-of-pocket costs and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance expenses incurred by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with any such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3request.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Regal Entertainment Group)
Access and Information. (a) During Subject to applicable Laws relating to the exchange of information, prior to the Closing, Sellers shall provide and shall use commercially reasonable efforts to cause the Company to provide to Parent and its representatives after the date of this Agreement any information and documents reasonably requested by Parent primarily relating to the Company and its Subsidiaries and their respective businesses, operations, affairs, properties, books and records and shall use commercially reasonable efforts to provide Parent and its representatives with reasonable access to personnel from ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇.▇. directly involved in the audit of the 2013 Audited Financial Statements (it being understood that all such access shall be coordinated through Company).
(b) To the extent permissible under applicable Law, from the Closing until the fourth anniversary of the Closing, Parent will afford to Sellers and their agents reasonable access at reasonable times to the books, records and auditors of the Company and its Subsidiaries to the extent reasonably required by Sellers for financial reporting and accounting matters and the preparation and filing of any Tax Returns for any period between ending on or before the Contract Closing Date and or any taxable period beginning on or before the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make ; provided that any such examination of the Books and Records as Purchaser access by Sellers may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation conduct of the Businessbusiness of the Company or Parent. Notwithstanding any other provisions of this Section 5.2From and after the Closing, Purchaser and Seller Sellers shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose hold all information relating to the Business, including Company and its Subsidiaries or the preparation Business possessed by or examination subject to the control of Tax Returns Sellers (including as is reasonably necessary for the purpose of determining whether all information provided or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating obtained pursuant to the Business or otherwise, or immediately preceding sentence) in strict confidence and use of such information by Sellers and its representatives in the conduct of any regulatory, customer or other dispute resolution process same manner and (iii) maintain such records for Purchaser’s examination and copying until at least to the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser same degree as it restricts disclosure of its intent own confidential information and such restrictions are to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals remain in effect after Closing for a period of such books and records are delivered to Purchaser or any of its Affiliates seven (including MONY7) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; years and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide use any such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration detriment of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
Access and Information. (a) During Subject to Section 11.5 of this Agreement, from the period between date hereof until the Contract Date earlier of the valid termination of this Agreement and the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination each of the Books Sellers and Records as Purchaser may reasonably request. Any investigationthe Company shall, examination or interview by Purchaser and shall cause each of employees the Company Group Entities (to the extent under the control of any of Seller such Seller) to, provide Buyer and its Affiliates or Representatives with reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur (at reasonable times Buyer’s sole cost and expense), during normal business hours hours, to the officers, employees, properties, assets, books and upon records relating to the Company Group Entities as Buyer shall reasonably request from time to time; provided that the Sellers or the Company Group Entities may restrict the foregoing access to the extent required by applicable Law or if the Sellers or the Company Group Entities reasonably believe in good faith that the information requested by Buyer (i) is subject to confidentiality obligations of a Company Group Entity to third parties pursuant to a Contract or the disclosure of such information would result in the loss of attorney-client privilege (but Sellers and the Company Group Entities shall use their respective commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege) or (ii) primarily relates to bids received from others prior notice to Sellerthe date hereof and information and analysis (including financial analysis) relating to such bids; provided, howeverfurther, that such actions by Purchaser in the exercise of the foregoing rights, Buyer shall not, and shall not unreasonably permit its Representatives to, (x) unduly interfere with the normal operation and conduct of the Business. Notwithstanding Business or conduct any sampling, testing, analysis or intrusive investigation of any air, soil, soil gas, surface water, groundwater, building materials, or other provisions of environmental media on Leased Real Property or (y) prior to the Closing, use any information obtained pursuant to this Section 5.2, Purchaser and Seller shall cooperate in implementing 6.2 for any competitive or other purpose unrelated to the provisions consummation of the transactions contemplated hereby. All information received pursuant to this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof6.2(a) shall be governed by the terms of the Confidentiality Agreement.
(b) Following the Closing Date, each of Parent and Seller shallBuyer shall not, and shall cause not permit its Affiliates Representatives to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, contact or otherwise communicate with the right, at Purchaser’s expense, to examine and make copies customers or suppliers of any records retained of the Company Group Entities regarding the transactions contemplated hereby unless, in each instance, approved in writing in advance by Seller Sellers’ Representative or the Company. Notwithstanding anything to the contrary herein, nothing herein shall restrict Buyer or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for or Representatives from conducting their respective businesses in the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)ordinary course, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statementsincluding, but only to not limited to, contacting or otherwise communicating in the extent that such records of Parentordinary course and consistent with past practice with existing customers, Seller suppliers or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer distributors or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice Persons party to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser existing relationships with Buyer or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its AffiliatesRepresentatives.
(c) Following During the seven (7)-year period beginning on the Closing Date, Purchaser shallBuyer shall use reasonable best efforts not to dispose, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, or permit the right to (A) examine and make copies, at Seller’s expensedisposal, of the any accounting, financial or tax books and records of MONY to the extent Company Group Entities relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after without giving reasonable prior written notice to Sellers’ Representative and offering to deliver the same to Sellers’ Representative at Sellers’ expense in proportion to their respective Seller of its intent Percentages, and, to destroy the extent reasonably requested in writing by Sellers’ Representative to Buyer during such documents. Access period, Sellers’ Representative shall be granted by ▇▇▇▇▇ and the Company Group Entities reasonable access (at Sellers’ cost and expense) to such employees and books and records shall not unreasonably interfere with the information during normal business operations of Purchaser or its Affiliateshours.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
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Access and Information. (a) During Prior to the period between Closing, and except for disclosures which would cause the Contract Date and Company to waive the Closing Dateattorney-client privilege or otherwise violate Applicable Law or any material confidentiality agreement, the Purchaser shall be entitledentitled to make or cause to be made such investigation of the Company, through and the financial and legal condition thereof, as the Purchaser deems necessary or advisable, and the Seller shall cause the Company to cooperate with any such investigation. In furtherance of the foregoing, but not in limitation thereof, the Seller shall cause the Company to (a) permit the Purchaser and its employees agents and representatives or cause them to be permitted to have full and at its own expensecomplete access to the premises, to make such examination operating systems, computer systems (hardware and software) and books and records of the Books Company upon reasonable notice during regular business hours, (b) furnish or cause to be furnished to the Purchaser such financial and Records as Purchaser may reasonably request. Any investigationoperating data, examination or interview by Purchaser of employees of any of Seller projections, forecasts, business plans, strategic plans and other data relating to the Company and its Affiliates or businesses as the Purchaser shall request from time to time, (c) cause the Company's accountants to furnish to the Purchaser and its accountants access pursuant to all work papers relating to any of the provisions periods covered by financial statements provided by the Company to the Purchaser hereunder and (d) furnish to the Purchaser's financial advisor complete and accurate information comparable to the types of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice information heretofore furnished by the Purchaser to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere the Purchaser's financial advisor in connection with the normal operation transactions contemplated hereby and such other information as such financial advisor may reasonably request in order to perform its financial advisory role on behalf of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofPurchaser.
(b) Following Prior to the Closing Date, each of Parent and Seller shallClosing, and shall except for disclosures which would cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at subsidiaries to waive the attorney-client privilege or prior otherwise violate any Applicable Laws or any material confidentiality agreement, the Purchaser shall provide complete and accurate information to the Closing. Access Seller and its representatives in response to reasonable requests for information made in order to enable the Seller to make such employees investigation of the Purchaser and records shall not unreasonably interfere with the business operations of financial and legal condition thereof, as the Seller deems necessary or its Affiliatesadvisable.
(c) Following Prior to the Closing DateClosing, Purchaser shallneither party hereto shall use any information provided to it in confidence for any purposes unrelated to this Agreement. Except with respect to publicly available documents, and shall cause its Affiliates to: in the event that this Agreement is terminated, (i) allow Sellerthe Purchaser will return to the Seller all documents obtained by them from the Seller or the Company in confidence and any copies thereof in the possession of the Purchaser or its agents and representatives or, upon reasonable prior notice and during normal business hours, through their respective employees and representativesat the option of the Purchaser, the right Purchaser shall cause all of such documents and all of such copies to (A) examine be destroyed and make copies, at Seller’s expense, of shall certify the books and records of MONY destruction thereof to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; Seller and (ii) maintain such books the Seller will return to the Purchaser all documents obtained by them from the Purchaser and records for Seller’s examination its subsidiaries in confidence and copying any copies thereof in the circumstances contemplated by clause (i) above. Purchaser possession of the Seller or its agents and representatives or, at the option of the Seller, the Seller shall maintain cause all of such documents and make available all of such copies to Seller be destroyed and shall certify the books and records of MONY destruction thereof to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its AffiliatesPurchaser.
(d) Following the Closing Date, Purchaser shall, No investigation by any party hereto or hereafter made shall modify or otherwise affect any representations and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms warranties of the Distribution Agreementsother party hereto, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser which shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in survive any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of whichinvestigation, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject conditions to the applicable provisions obligation of Section 5.3the parties hereto to consummate the transactions contemplated hereby.
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Access and Information. The Sellers (a) During shall permit the period between Buyer and its representatives (including, for purposes of this Section 5.4, prospective lenders), after the Contract Date date of execution of this Agreement and prior to the Closing Date, Purchaser shall be entitledto have reasonable access, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal regular business hours and upon reasonable prior notice advance notice, to Seller; providedthe offices, howeverplants, that such actions by Purchaser shall not unreasonably interfere with the normal operation properties, books and records, personnel, counsel and auditors of the Business. Notwithstanding any other provisions of this Section 5.2AIG, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following shall furnish, or cause to be furnished, to the Buyer or its representatives any financial and operating data and other information with respect to the business and properties of AIG as the Buyer or its representatives shall from time to time reasonably request for the purpose of verifying the representations and warranties of the Sellers hereunder and (c) shall cause its auditors to permit the Buyer and its representatives to examine their records and working papers to the extent such records and papers pertain to the Business; PROVIDED, HOWEVER, that no investigation by the Buyer or its representatives shall affect or limit the scope of the Sellers' representations and warranties herein or limit the Sellers' liability for any breach of such representations and warranties. In the event of the termination of this Agreement, the Buyer shall (i) promptly deliver to the Sellers all documents containing confidential information obtained by the Buyer from the Sellers, AIG or their representatives and (ii) certify to the Sellers that the Buyer has destroyed, or caused to be destroyed, documents, work papers and other material generated by the Buyer reflecting confidential information obtained from the Sellers, AIG or their representatives as a result of this Agreement or in connection herewith, whether so obtained before or after the execution hereof. The Buyer shall at all times prior to the Closing Date, each and in the event of Parent termination of this Agreement, cause any information so obtained to be kept confidential and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or will not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwiseuse, or permit the conduct of any regulatoryuse of, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, work papers and other materials in its business or in any other manner or for any other purpose except as contemplated hereby and except for any such information that Seller and its Affiliates shall have no obligation to maintain is now or retain any books and records hereafter becomes available to the extent that electronic public through no fault of the Buyer or paper copies its representatives or originals of such books and records are delivered was in fact known to Purchaser or any of its Affiliates (including MONY) at or the Buyer prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesdisclosure hereunder as evidenced by written records.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (ai) During The Company and Seller have given and, during the period between the Contract Date Interim Period, Seller shall give, or shall cause to be given, to Purchaser and the Closing Dateits employees, Purchaser shall be entitled, through its employees agents and representatives appropriate access, at all reasonable times and at its own Purchaser's expense, to make such examination the properties, books, files, records and officers of the Books Company and Records of Seller and their agents, including legal representatives and accountants, as such relate to the Company Assets and the Transmission Business, and will furnish or shall cause to be furnished, at no cost to Purchaser other than reasonable out-of-pocket expenses and the cost of copying or duplication, all information and documents relating to the Transmission Business as Purchaser may reasonably request. Any investigation, examination or interview by and permit Purchaser of to contact and meet with the employees of any Seller involved in the Transmission Business at such place or places and at such times as reasonably designated by Purchaser, provided that no such investigation shall unreasonably interfere with the Transmission Business, or relationships with employees or customers of Seller or customers of the Company. During the Interim Period, Seller shall permit Purchaser to make copies of information relating to the Transmission Business contained in the books, files and records of Seller and its Affiliates the Company. Purchaser will cause all information regarding Seller, the Company or access the Transmission Business obtained or acquired by Purchaser or Purchaser's representatives, employees, consultants, independent contractors, attorneys and financing sources and other advisors (the "Purchaser Parties") pursuant to any this Agreement to be used and maintained by the Purchaser Parties in accordance with the terms of the confidentiality agreement dated February 27, 2003, by and between McDonald Investments Inc. (as agent for Seller) and Purchaser (the "Confidentiality Agreement"). Notwithstanding the foregoing provisions of this Section 5.2 shall 6.1(b), (1) to the extent necessary in order to obtain the Purchaser Required Governmental Consents, Purchaser may disclose such information to the appropriate Governmental Authorities provided Purchaser makes commercially reasonable efforts to ensure that the information that is so disclosed will be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Selleraccorded confidential treatment by the Governmental Authority; provided, however, that such actions by Purchaser (2) Seller shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not be required to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only disclose information to the extent that the disclosure thereof is prohibited under confidentiality agreements currently in effect on the date hereof, and (3) Purchaser shall be permitted to disclose information to the extent required by applicable Legal Requirements or stock exchange regulations or to the extent requested by its (or its designee's) lenders.
(ii) Seller shall have the right to have a representative present at all times of any inspections, interviews, and examinations conducted at or on the offices or other facilities or properties of Seller or the Company. Purchaser shall have no right of access to, and Seller shall have no obligation to provide to Purchaser, (1) bids received from others in connection with the transactions contemplated by this Agreement and information and analysis (including financial analysis) relating to such records bids, or (2) any information the disclosure of Parentwhich would jeopardize any privilege available to the Company, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to such information or would cause Seller to breach a confidentiality obligation. Purchaser agrees that if Purchaser or its authorized representatives receive, or if the Businessinformation (whether in electronic mail format, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business on computer hard drives or otherwise, or ) held by the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary Company as of the Closing Date, provided, includes information that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records relates to the extent that electronic business operations or paper copies or originals other strategic matters of such books and records are delivered to Purchaser Seller, or any of its Affiliates (including MONY) at or prior other than the Company), such information shall be held in confidence on the terms and subject to the conditions contained in the Confidentiality Agreement, but the term of the restriction on the disclosure and use of such information shall continue in effect as to such information for a period of two years from the Closing. Access Purchaser further agrees that if Seller or the Company inadvertently furnishes to Purchaser copies of or access to information that is subject to clause (2) of the second preceding sentence, Purchaser will, upon Seller's request, promptly return same to Seller and Purchaser will destroy any and all extracts therefrom or notes pertaining thereto (whether in electronic or other format).
(iii) Purchaser agrees that Seller may retain (1) a copy of all materials included in the Data Room, together with a copy of all documents referred to in such employees materials, (2) copies of all books and records shall not unreasonably interfere with the business operations of prepared by Seller or its Affiliates.
Affiliates in connection with the transactions contemplated by this Agreement, including bids received from others and information relating to such bids, (c3) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, copies of the any books and records which may be relevant in connection with the assertion or defense of MONY to the extent relating to periods prior to the Closing disputes arising hereunder, (4) all consolidating and (B) interview Purchaser’s consolidated financial information and its Affiliates’ employees, in the case of either clause (i)(A) all other accounting books and records prepared or (i)(B), used in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for statements of Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii5) except copies of all Retained E-mail. Seller agrees that all such information shall be treated as set forth in Confidential Information of Purchaser as within the last sentence meaning of this Section 5.2(e) or in Section 5.14(f), each of Parent the Operation and Seller shall, Maintenance and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Administrative Services Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable terms and conditions of the confidentiality provisions contained therein.
(iv) Notwithstanding anything to the contrary set forth in this Agreement, the obligations of confidentiality hereof, as they relate to the transactions contemplated hereby, shall not apply to the federal tax structure or federal tax treatment of such transactions, and each Party (and any employee, representative, or agent of any Party) may disclose to any and all Persons, without limitation of any kind, the federal tax structure and federal tax treatment of such transaction. The preceding sentence is intended to cause the transactions contemplated hereby not to be treated as having been offered under conditions of confidentiality for purposes of Section 5.31.6011-4(b)(3) (or any successor provision) of the Treasury Regulations promulgated under Section 6011 of the Code and shall be construed in a manner consistent with such purpose. In addition, each Party hereto acknowledges that it has no proprietary or exclusive rights to the tax structure of the transactions contemplated hereby or any tax matter or tax idea related to such transaction.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Atlas Pipeline Partners Lp)
Access and Information. (a) During the period between the Contract Date Upon reasonable notice, Acquiree Bank shall afford Acquiror and the Closing Dateits representatives (including, Purchaser shall be entitledwithout limitation, through its employees directors, officers and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Acquiror and its Affiliates or affiliates and counsel, accountants and other professionals retained by Acquiror) such reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and upon reasonable prior notice work papers of independent auditors), contracts, properties, personnel and to Sellersuch other information relating to Acquiree Bank as Acquiror may reasonably request; 27 NEXT PAGE provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of no investigation pursuant to this Section 5.2, Purchaser and Seller 5.3 shall cooperate affect or be deemed to modify any representation or warranty made by Acquiree Bank in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofAgreement.
(b) Following From the Closing Datedate hereof until the Effective Time, each of Parent and Seller shall, and Acquiree Bank shall cause its Affiliates to: promptly provide Acquiror with (i) allow Purchasera copy of each report, upon reasonable prior notice schedule and during normal business hoursother document filed with or received by it from any Government Regulator, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct a copy of any litigation relating materials furnished to the Business or otherwiseits senior management and all materials furnished to its Board of Directors, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain a copy of each press release made available to the public and (iv) any other information concerning its business, properties and personnel as Acquiror may reasonably request. Notwithstanding the foregoing, Acquiree Bank shall not be required to provide access to or to disclose information where such records for Purchaser’s examination and copying until at least access or disclosure would violate the sixth anniversary rights of such entity's customers, jeopardize the attorney-client privilege of the Closing Date, provided, that Seller may destroy such records entity in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain possession or retain any books and records to the extent that electronic or paper copies or originals control of such books and records are delivered to Purchaser information, or contravene any of its Affiliates (including MONY) at law, rule, regulation, order, judgment, decree or binding agreement entered into prior to the Closingdate of this Agreement. Access to such employees and records shall not unreasonably interfere with The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the business operations restrictions of Seller or its Affiliatesthe previous sentence apply.
(c) Following the Closing Date, Purchaser shallAcquiror will not, and shall will cause its Affiliates representatives not to: , use any information obtained pursuant to this Section 5.3 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Subject to the requirements of applicable law, Acquiror will keep confidential, and will cause its representatives to keep confidential, all information and documents obtained pursuant to this Section 5.3 unless such information (i) allow Sellerwas already known to Acquiror or an affiliate of Acquiror other than pursuant to a confidentiality agreement or other confidential relationship, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make becomes available to Seller Acquiror or an affiliate of Acquiror from other sources not known by such party to be bound by a confidentiality agreement or other obligation of secrecy, (iii) is disclosed with the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller approval of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser Acquiree Bank or its Affiliates(iv) is or becomes readily ascertainable from published information or trade sources.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from From and after the Contract Date or as promptly thereafter as is reasonably practicabledate hereof, include any information relating representatives of Acquiror Bank and Acquiree Bank shall meet on a regular basis to discuss and plan for the Insurance Contracts in any “conversion of Acquiree Bank's data mining” program or process that is designed or intended processing and related electronic informational systems to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered those used by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement Acquiror Bank with the party granting access and its Affiliates goal of conducting such conversion simultaneously with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions consummation of Section 5.3the Merger.
Appears in 1 contract
Access and Information. (a) During the period between from the Contract Date date of this Agreement and continuing until the earlier of the termination of this Agreement in accordance with Section 8.1 or the Second Closing Date(the “Interim Period”), upon reasonable advance written notice from Purchaser, the Company will provide, and use its commercially reasonable efforts to cause its Representatives to provide, Purchaser shall be entitledand its Representatives with reasonable access, through its employees and representatives and at its own Purchaser’s sole expense, to make such examination during normal business hours, under the supervision of personnel of the Books Company or its Representatives, and Records in such a manner as not to unreasonably interfere with the normal operations of the business of the Target Companies, to (i) such materials and information about the Target Companies as Purchaser may reasonably request, and (ii) specified members of management of the Target Companies as Purchaser may reasonably request, in each case solely for purposes of consummating the Transactions. Any investigationNotwithstanding the foregoing, examination the Company will not be required to disclose any information to Purchaser or interview by Purchaser its Representatives if such disclosure would (x) in the judgment of employees legal counsel of the Company, be reasonably likely to jeopardize any attorney-client or other legal privilege, or (y) contravene any applicable Law, it being agreed that the Parties shall use reasonable efforts to make alternative arrangements for such disclosure in a manner that would not result in such jeopardy or contravention. For the avoidance of Seller doubt, nothing herein shall authorize any party or its Representative to undertake any testing involving invasive techniques, including testing involving sampling of soil, sediment, groundwater, surface water, air or building materials, at any Target Company property, without the prior written consent of the Company.
(b) During the Interim Period, upon reasonable advance written notice from the Company, Purchaser, Holdco and the Merger Subs will provide, and use their commercially reasonable efforts to cause their respective Representatives to provide to the Company and its Affiliates or access pursuant to any of Representatives reasonable access, at the provisions of this Section 5.2 shall be conducted or occur at reasonable times Company’s expense, during normal business hours hours, under the supervision of personnel of Purchaser or its Representatives, and upon reasonable prior notice in such a manner as not to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation operations of the Business. Notwithstanding any other provisions business of this Section 5.2Purchaser, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow such materials and information about Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements Holdco and the conduct of any litigation relating to Merger Subs as the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller Company may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokersrequest, and (ii) except as set forth in the last sentence specified members of this Section 5.2(e) or in Section 5.14(f)management of Purchaser, each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement Holdco and the Distribution Agreements (including any purpose relating to compliance by ParentMerger Subs as the Company may reasonably request, Seller or any in each case for purposes of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to consummating the servicing of the Business)Transactions. Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding Notwithstanding the foregoing, neither Purchaser will not be required to disclose any information to the Company or its Representatives if such disclosure would (x) in the judgment of legal counsel of Purchaser, Parent nor Seller, nor be reasonably likely to jeopardize any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of whichother legal privilege, or (y) contravene any applicable Law or Contract, it being agreed that the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access Parties shall have used its commercially use reasonable efforts to provide make alternative arrangements for such information without violation of Applicable Law. The party granting access shall promptly provide, disclosure in a manner that would not result in such jeopardy or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3contravention.
Appears in 1 contract
Sources: Business Combination Agreement (Agrico Acquisition Corp.)
Access and Information. (a) During the period between Interim Period, the Contract Date Company shall (i) give Parent and its Representatives reasonable access to the Closing Dateoffices, Purchaser shall be entitledproperties, through its employees books and representatives and at its own expense, to make such examination records of the Books Company, upon the reasonable request of Parent, (ii) furnish to Parent and Records its Representatives such financial and operating data, information related to Company Intellectual Property and other information relating to the Company as Purchaser such Persons may reasonably requestrequest and (iii) instruct the Company’s Representatives to cooperate with Parent in its investigation of the Company. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access investigation pursuant to any of the provisions of this Section 5.2 5.6(a) shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that in such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so manner as not to prevent or interfere unreasonably with Parent’s and Seller’s compliance with Section 5.1 hereofthe conduct of the business of the Company.
(b) Following Without limiting the Closing Dategenerality of the foregoing, each of during the Interim Period, the Company shall permit Parent and Seller its Representatives to contact the Company’s accountants, auditors (including PwC) and employees, and the Company shall, and shall use its commercially reasonable efforts to cause its Affiliates such accountants, auditors and employees to: , discuss, reasonably cooperate and provide all material information, documentation, data and materials (iwhether in electronic form of otherwise) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the BusinessCompany that is in the control or possession of the Company or its Affiliates or Representatives as Parent may reasonably request, including any information that is reasonably required for the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements of Parent that include financial and operating data relating to the Company; provided that such discussions, cooperation and provision do not interfere unreasonably with the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary business of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its AffiliatesCompany.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything Notwithstanding anything herein to the contrary in this Section 5.2(a)5.6, (b)no access or examination contemplated by this Section 5.6 shall be permitted to the extent that it would require the Company or its Subsidiaries to waive the attorney-client privilege or attorney work product privilege, (c)or violate any applicable Law; provided, (d) or (e) notwithstanding, that the party granting access may withhold any document (or portions thereof) or information Company (i) shall be entitled to withhold only such information that is subject to the terms of a non-disclosure agreement with a third partymay not be provided without causing such violation or waiver, (ii) shall provide to Parent all related information that may constitute privileged attorney-client communications be provided without causing such violation or attorney work product and waiver (including, to the transfer of whichextent permitted, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver redacted versions of any such privilege or information), and (iii) if the provision of access to shall enter into such document (effective and appropriate joint-defense agreements or portion thereof) or information, other protective arrangements as determined by such party’s counsel, would reasonably may be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any Parent in order that all such information may be provided to Parent without causing such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3violation or waiver.
Appears in 1 contract
Access and Information. (a) During the period between from the date of this Agreement to the Closing, except to the extent prohibited by applicable Law or the terms of any Contract Date and entered into prior to the Closing Datedate hereof for which Parent has been unable, Purchaser shall be entitled, through despite use of its employees and representatives and at its own expensereasonable best efforts, to make such examination obtain a consent or waiver from the other parties thereto (other than any Affiliate of the Books and Records Parent) to enable disclosure to LMC, or as Purchaser may would reasonably request. Any investigation, examination be expected to violate or interview by Purchaser of employees result in a loss or impairment of any attorney-client or work product privilege (it being understood that the parties shall use reasonable best efforts to cause such information to be provided in a manner that does not result in such violation, loss or impairment), and subject to the obligations of Seller LMC under the Confidentiality Agreement with respect thereto, Parent will permit (and its Affiliates or will cause the Transferred Subsidiaries to permit) Representatives of LMC to have reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedall premises, howeverproperties, that such actions by Purchaser shall not unreasonably interfere with the normal operation personnel, books, records, Contracts, commitments, reports of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shallexamination, and shall cause its Affiliates to: (i) allow Purchaserdocuments of or pertaining to the Transferred Business, and reasonable opportunity upon reasonable prior notice and during normal business hours, through its consultation with Parent to communicate with employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent Transferred Business (provided that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements Parent and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates Transferred Subsidiaries shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine be present by representative for all such contacts between LMC and make copiesany employee of the Transferred Business, whether in person, telephonic or otherwise), except with respect to DTV, as may be necessary to permit LMC to, at Seller’s its sole expense, of the books and records of MONY make, or cause to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesbe made, in the case of either clause (i)(A) or (i)(B), such investigations thereof as are reasonably necessary in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary consummation of the Closing DateTransactions, providedand Parent shall (and shall cause the Transferred Subsidiaries to) reasonably cooperate with any such investigations; provided that Parent's designees on the Board of Directors of DTV, that Purchaser may destroy such books subject to their fiduciary duties to DTV and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice stockholders, shall take no action to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations investigation of Purchaser DTV by LMC. No information or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts knowledge obtained in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party investigation pursuant to this Section 5.2(f). Any information provided 6.1 or otherwise shall affect or be deemed to modify any representation or warranty contained herein or delivered pursuant hereto or to this Section 5.2 shall be subject modify the conditions to the applicable provisions obligations of Section 5.3the parties hereto to consummate the Transactions.
Appears in 1 contract
Sources: Share Exchange Agreement (News Corp)
Access and Information. Subject to the obligations of Buyer and its Representatives in Section 10(b) (ai) During of this Agreement, upon reasonable notice, Seller shall grant, or cause to be granted to, Buyer and its counsel, accountants, consultants, financing sources and other authorized representatives, during the period between the Contract date of this Agreement and the Closing Date access during normal business hours to the Purchased Assets and the books and records and other information relating to the operations of the Senior Living Assets. Seller acknowledges that it shall provide access to Buyer and its Representatives to enable Buyer to carry out the Due Diligence Investigation pursuant to the terms of that certain Letter Agreement, dated as of August 9, 2002, by and between Buyer and Seller, as supplemented by that certain Letter Agreement, dated as of August 14, 2002, by and between Buyer and Seller (collectively, the "Access Letter"), the terms of which are incorporated herein by reference. For purposes hereof, any request for access pursuant to the terms of the Access Letter shall be deemed given by Seller as of the end of the third business day following Seller's receipt of such request, unless Seller has objected prior to such time. From the date of this Agreement through the Closing Date, Purchaser Seller shall use commercially reasonable efforts to furnish, or cause to be entitledfurnished to, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Buyer and its Affiliates or access pursuant to any of Representatives all data and information concerning the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours Purchased Assets and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the BusinessSenior Living Assets which may reasonably be requested by Buyer and shall use all commercially reasonable efforts to make available, or cause to be made available, such personnel of Seller as may reasonably be requested for the furnishing of such data. Notwithstanding any other provisions From the date of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following Agreement through the Closing Date, each except as otherwise specified or permitted in the Access Letter or except as otherwise approved in advance by Seller, Buyer shall not contact or communicate with any employees, customers of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only suppliers to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable Senior Living Assets without Seller's prior written notice to Purchaser of its intent to destroy such documentsconsent, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records which consent shall not be unreasonably interfere with the business operations of Seller or its Affiliateswithheld.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Five Star Quality Care Inc)
Access and Information. (a) During From the period between the Contract Date and date of this Agreement through the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller Company shall, and shall cause its Affiliates subsidiaries to: , (i) allow Purchaserafford to Newfield companies and their officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Acquiror Representatives") access during ordinary business hours and at other reasonable times, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expensenotice, to examine the officers, employees, accountants, agents, properties, offices and make copies other facilities of any the Company and its subsidiaries and to the books and records retained thereof and (ii) furnish promptly to Acquiror and the Acquiror Representatives such information concerning the business, properties, contracts, records and personnel of the Company and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by Seller Acquiror or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary the Acquiror Representatives, in each case for the purpose of determining whether or not conducting an Insurance Contract has met the diversification requirements of Section 817(h) investigation of the Code)affairs of the Company and its subsidiaries in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing provisions of this Section 7.02, including the preparation Company shall not be required to grant access or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only furnish information to the Acquiror Representatives to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY access or the Business; furnishing of such information is prohibited by any Law or contract. Acquiror's investigation shall be conducted, to the extent reasonably practicable, in a manner that minimizes any significant interference with the normal operations of the Company.
(b) Acquiror shall, and shall direct and use all reasonable efforts to cause the other Acquiror Representatives to, hold in confidence and not disclose (except to Acquiror Representatives or as required by applicable law, court order or the applicable rules of a stock exchange) all nonpublic information received from the Company or its representatives in connection with the transactions contemplated by this Agreement until the earlier of (i) the Closing, (ii) allow Purchaser to interview employees three years after the termination of Parent, Seller this Agreement or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination time as such information is otherwise publicly available, and, if this Agreement is terminated, Acquiror shall, and copying shall direct and use all reasonable efforts to cause the other Acquiror Representatives to, either destroy or deliver to the Company all documents, work papers and other materials (including copies) provided or based upon information provided by the Company or its representatives in connection with the transactions contemplated by this Agreement. In addition, from and after the Closing until at least the sixth anniversary earlier of three years after the Closing or such time as such information is otherwise publicly available, Acquiror shall, and shall direct and use all reasonable efforts to cause the other Acquiror Representatives to, hold in confidence and not disclose (except as required by applicable law, court order or the applicable rules of a stock exchange) all nonpublic information regarding the members of the Closing Date, provided, that Seller may destroy such records in its discretion following Company and agreements between the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller Company and its Affiliates shall have no obligation to maintain members received from the Company or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere representatives in connection with the business operations of Seller or its Affiliatestransactions contemplated by this Agreement.
(c) Following the Closing Date, Purchaser The Company shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right subsidiaries to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, direct and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially all reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provideand their officers, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting accessmanagers, directors, members, shareholders, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Company Representatives") to, hold in confidence and not disclose (except to other party shall enter into a customary joint defense agreement with the party granting access Company Representatives, as necessary or appropriate for purposes of tax returns and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.governmental
Appears in 1 contract
Sources: Asset Purchase Agreement (Newfield Exploration Co /De/)
Access and Information. (a) During the period between from the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions date of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedAgreement through the Effective Time, however, that such actions by Purchaser shall not unreasonably interfere with (i) the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller Company shall, and shall cause its Affiliates Subsidiaries to: (i) allow Purchaser, upon reasonable prior notice afford Sterling and its accountants, counsel and other representatives full access during normal business hourshours to the properties, through books, contracts, Tax Returns, Reports, commitments and records of the Company and its employees Subsidiaries at any time, and representativesfrom time to time, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether conducting any review or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only investigation reasonably related to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY this Agreement or the Business; (ii) allow Purchaser to interview employees of ParentMerger, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller Company and its Affiliates shall have no obligation to maintain or retain any books Subsidiaries will cooperate fully with all such reviews and records to investigations provided that Sterling provides the extent Company with reasonable notice of Sterling's on-site visits and that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall Sterling does not unreasonably interfere with the business operations of Seller the Company during the course of such visits, and (ii) Sterling shall upon reasonable notice make personnel and copies of its SEC reports and other information reasonably related to Sterling's operations or financial performance available to the Company and its Affiliatesadvisors for purposes of any review or report to the Company Board in evaluating the Merger.
(b) During the period from the date of this Agreement through the Effective Time, the Company shall furnish to Sterling (i) all Reports which are filed after the date hereof promptly upon the filing thereof, (ii) a copy of each Tax Return filed by it after the date hereof, and (iii) monthly and other interim financial statements in the form prepared by the Company for its internal use. During this period, the Company shall notify Sterling promptly of any material change in the Condition of the Company or any of its Subsidiaries.
(c) Following Notwithstanding the Closing Dateforegoing provisions of this Section 8.01, Purchaser shallno investigation by any party hereto made heretofore or hereafter shall affect the representations and warranties of the other parties which are contained herein and each such representation and warranty shall survive such investigation.
(d) Sterling agrees that it will keep confidential any information furnished to it by the Company in connection with the transactions contemplated by this Agreement which is reasonably designated as confidential at the time of delivery, except to the extent that such information (i) was already known to Sterling and was received from a source other than the Company or any of its Subsidiaries, directors, officers, employees or agents, (ii) thereafter was lawfully obtained from another source or was publicly disclosed by the Company or its agent or representative, or (iii) is required to be disclosed to any Regulatory Authority, or is otherwise required to be disclosed by law. Sterling agrees not to use such confidential information, and to implement safeguards and procedures that are reasonably designed to prevent such confidential information from being used, for any purpose other than in connection with the transactions contemplated by this Agreement. Upon any termination of this Agreement, Sterling will return to the Company or will destroy all documents furnished Sterling for its review and all copies of such documents made by Sterling. The Company agrees to keep confidential, in accordance with the provisions of this clause (d), any information furnished to it by Sterling in connection with transactions contemplated by this Agreement that is reasonably designated as confidential at the time of delivery.
(e) The Company shall cooperate, and shall cause its Affiliates to: (i) allow SellerSubsidiaries, upon reasonable prior notice accountants, counsel and during normal business hoursother representatives to cooperate, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s with Sterling and its Affiliates’ employeesaccountants, in the case of either clause (i)(A) or (i)(B)counsel and other representatives, in connection with the preparation or examination by Sterling of Tax Returnsany applications and documents required to obtain the Approvals which cooperation shall include providing all information, documents and appropriate representations as may be necessary in connection therewith and, when requested by Sterling, preparing and filing regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliatesapplications.
(df) Following From and after the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence date of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing DateAgreement, each of Parent Sterling and Seller shall, and the Company shall use reasonable commercial efforts to satisfy or cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect be satisfied all conditions to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement. While this Agreement and is in effect, neither Sterling nor the Distribution Agreements (including Company shall take any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Lawactions, or omit to dealings take any actions, which would cause this Agreement to become unenforceable in accordance with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractits terms.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During the period between commencing on the Contract Date date hereof and continuing through the Closing Date, the Shareholder shall cause the Company and its Subsidiaries to afford to Purchaser shall be entitledand to Purchaser's accountants, through counsel, investment bankers and other representatives, reasonable access to all of its employees properties, books, contracts, commitments, records and representatives and at its own expensepersonnel and, during such period, to make such examination of continue to cause the Books Company and Records its Subsidiaries to furnish promptly to Purchaser all information concerning its business, properties and personnel as Purchaser may reasonably request. Any investigation, examination or interview .
(b) Except to the extent permitted by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of Section 7.5 hereof, Purchaser, the Company and the Shareholder shall keep the contents of this Section 5.2 shall be conducted Agreement and all other documents and information relating hereto and thereto, or occur at reasonable times during normal business hours furnished or acquired pursuant to or in connection with, this Agreement and upon reasonable prior notice to Sellerthe Schedules hereto, or the transactions contemplated hereby or thereby, confidential; provided, however, that either party may disclose such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates toinformation: (i) allow Purchaserto its parent company or its Subsidiaries, upon reasonable prior notice (ii) to its counsel, accountants and during normal business hoursauditors, through its employees in any case, as and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate necessary to MONY or the Business; (ii) allow Purchaser enable them to interview employees of Parent, Seller or any of perform their respective Affiliates for any reasonable purpose relating services to such party in connection with this Agreement and the Businesstransactions contemplated hereby, including so long as such Person is informed by the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) disclosing party of the Code)confidential nature of the information so disclosed, regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for in the case of Purchaser’s examination , to its stockholders any advisors or prospective financial investors in connection with the financing of this transaction, and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller (iv) as and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic required by applicable law, rule or paper copies regulation or originals policy of any stock exchange; provided, however, that, in connection with such disclosure, the disclosing party shall inform the other parties of such books disclosure and records are delivered shall take all reasonable available measures to Purchaser or protect the confidentiality of such disclosed information. The foregoing, however, shall not preclude any financial investor committed to participate in the financing of the transaction from making disclosure to its stockholders of its Affiliates (including MONY) at or prior financial commitment provided that such disclosure is subject to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, consent of the books Purchaser and records the Shareholder, which consent may not be unreasonably withheld. Upon termination of MONY to the extent relating to periods this Agreement prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesfor any reason, each party shall promptly return or destroy all confidential information in the case of either clause (i)(A) writing or (i)(B), in computer format received pursuant to or in connection with the preparation or examination of Tax Returnsthis Agreement by another party and, regulatory and statutory filings and financial statements; and (ii) maintain if destroyed, furnish an officer's certificate detailing such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY destruction to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder provider thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. Subject to the terms of the Confidentiality Agreement, which Buyer acknowledges that the information provided to it and its Representatives under this Section 5.3 is subject to the terms thereof, and which the Parties agree will continue in full force following the date of this Agreement, during the Pre-Closing Period, upon reasonable notice, the Company shall and shall use commercially reasonable efforts to cause its Representatives to: (a) During the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller provide Buyer and its Affiliates or Representatives reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours to the Company’s Representatives, personnel, property and upon reasonable prior notice assets and to Sellerall existing books, records, Tax Returns, work papers and other documents and information relating to the Company and its Subsidiaries; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following provide Buyer and its Representatives with such copies of the Closing Dateexisting books, each of Parent and Seller shallrecords, Tax Returns, work papers, product data, and shall cause its Affiliates to: other documents and information relating to the Company, and with such additional financial, operating and other data and information regarding the Company’s Subsidiaries as Buyer may reasonably request; (ic) allow Purchaserpermit Buyer’s officers and other employees to meet, upon reasonable prior notice and during normal business hours, through its employees with the chief financial officer and representatives, other officers and managers of the right, at PurchaserCompany responsible for the Company’s expense, financial statements and the internal controls of the Company to examine and discuss such matters as the Company may deem necessary or appropriate and; (d) make available to Buyer copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and unaudited financial statements, but only material operating and financial reports prepared for senior management or the board of directors or managers of Buyer, and any material notice, report or other document filed with or sent to or received from any Governmental Body in connection with the contemplated transactions. Any investigation conducted by Buyer pursuant to this Section 5.3 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the other Party. Notwithstanding the foregoing, the Company may restrict the foregoing access to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating Law applicable to the Business, including Company requires the preparation Company to restrict or examination of Tax Returns (including prohibit access to any such properties or information or as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is be necessary to enable preserve the attorney-client privilege under any circumstances in which such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser privilege may be jeopardized by such disclosure or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreementaccess; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser Company shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide obtain any required consents for the disclosure of such information without violation and take such other reasonable action (including, to the extent permitted, redacted versions of Applicable Law. The party granting access shall promptly provide, any such information or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter entering into a customary joint defense agreement with the party granting access and its Affiliates or similar arrangement to avoid loss of attorney-client privilege) with respect to any such information provided as is necessary to permit disclosure without jeopardizing such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the attorney-client privilege or violating applicable provisions of Section 5.3Law, as applicable.
Appears in 1 contract
Access and Information. (a) During Subject to Section 6.4 and applicable Law, from the period between date of this Agreement until the Contract Date Closing or earlier termination of this Agreement pursuant to Article IX hereof, Seller shall, and shall cause the Company and the Closing DateCompany Subsidiaries to, Purchaser shall be entitled, through its employees and representatives and at its own expense, afford to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Buyer and its Affiliates or Representatives access pursuant reasonably necessary for Buyer to any of the provisions of perform its obligations under this Section 5.2 shall be conducted or occur Agreement at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation under supervision of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing Company’s or the provisions of this Section 5.2 so as not applicable Company Subsidiary’s personnel to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) properties of the Code), including Company and the preparation or examination of Purchaser’s Tax Returns, regulatory filings Company Subsidiaries and financial statements, but only to the extent that such books and records of Parentthereof, Seller or any of their Affiliates relate to MONY or the Business; and (ii) allow Purchaser to interview employees specified members of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) management of the Code), regulatory and statutory filings and financial statements Company and the conduct of any litigation relating Company Subsidiaries as the parties may reasonably agree; provided that all requests for access pursuant to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process this Section 6.3 shall be made in writing and (iii) maintain shall be directed to and coordinated with such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that persons as Seller may destroy direct in writing (or such records person or persons as he may designate in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice writing to Purchaser of its intent to destroy such documents, Buyer); provided, further, that Seller any such access shall be conducted at a reasonable time during ordinary business hours, upon reasonable advance notice to Seller, and its Affiliates without undue disruption to the business operations of the Company and the Company Subsidiaries. Notwithstanding anything to the contrary contained herein, neither Seller, the Company nor any Company Subsidiary shall have no obligation be required to maintain disclose to Buyer or retain Buyer’s Representatives any books and records information (i) to the extent that electronic related to the sale process or paper copies Seller’s evaluation thereof, including projections and financial or originals other information related thereto, other than projections and financial or other information prepared in the ordinary course of such books business and records are delivered not prepared for the sale process, (ii) if doing so presents a reasonable risk of violating any contract to Purchaser which Seller, the Company or any Company Subsidiary is a party or any Law to which Seller, the Company or any Company Subsidiary is subject or which Seller believes in good faith (upon the advice of counsel) would result in a loss of the ability to successfully assert a claim of privilege, (iii) reasonably pertinent to any Litigation in which Seller, the Company or any Company Subsidiary, on the one hand, and Buyer or any of its Affiliates Subsidiaries or Affiliates, on the other hand, are adverse parties, or (including MONYiv) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow that Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser Company or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that Company Subsidiary reasonably determines in good faith is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partycompetitively sensitive.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During From the period between date hereof until the Contract Date and the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant subject to any of the provisions of this Section 5.2 shall be conducted or occur at applicable Law, Parent, in its reasonable times during normal business hours discretion and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate not disruptive to MONY or the Business; (ii) allow Purchaser to interview employees of Parentthe Target Companies, Seller or any of their respective Affiliates for any reasonable purpose relating to Target Business and the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) senior management of the Code)Target Companies, regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide afford Purchaser and its Affiliates, subject to any contractual restrictions, reasonable access during normal business hours upon reasonable advance notice to the books and records of the Target Business and senior management of the Target Companies and their respective agents and auditors, in each case, to the extent reasonably required by Purchaser to ensure an orderly and efficient transition of the Target Business to Purchaser (including meetings in connection with talent identification and interviews with key employees), to prepare for the Closing and to facilitate the satisfaction of the conditions to the Closing under Article VI; provided, however, that in no event shall Purchaser have access to any information (i) that relates solely to any portion of the business of Parent or its Affiliates that is not being transferred pursuant to this Agreement or (ii) in Parent’s reasonable determination, the disclosure of which would violate applicable Law, or could result in the waiver of any legal privilege. In the event that disclosing information would violate any obligation of Parent or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Parent shall make such information available if Purchaser delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Parent.
(b) Following the Closing, to the Affiliated Distributors extent permitted by applicable Law, Purchaser agrees to provide (or cause its Affiliates to provide) Parent with all necessary access to all books and records and other documents that are parties it acquires pursuant to this Agreement and to its assets, properties and Representatives, in each case, to the Distribution Agreementsextent that such access is reasonably required by Parent or any of its Affiliates, (i) to prepare financial statements, Tax filings or regulatory filings of Parent in accordance respect of periods ending on or prior to the Closing Date, (ii) to comply with the terms of the Distribution Agreementsany Transaction Document, as any applicable Law or request of any Government Authority, (iii) to defend or prosecute any judicial, arbitral or regulatory proceeding to which Parent or any of its Affiliates is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect a party relating to the Insurance Contractsbusiness and affairs of the Target Companies prior to the Closing, and none or (iv) SC1:3314648.6 in connection with any claim for indemnity made under or pursuant to this Agreement, in each case, subject in the case of any Confidential Information of Purchaser or any of its Affiliates shallto Parent and its Representatives agreeing to maintain the confidentiality of such information; provided, whether directly however, that in no event shall Parent have access to any information the disclosure of which, based on advice of Purchaser’s counsel, or indirectlyin Purchaser’s reasonable determination, support would violate applicable Law or sponsor a program that is intended or would reasonably be expected to could result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms waiver of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partylegal privilege. Purchaser shall not honor In the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request event that disclosing information would violate Applicable Law or the terms any obligation of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Lawrespect to confidentiality, or to dealings with any Governmental Authoritythe Parties shall reasonably cooperate so the information might be made available in a redacted format, relating to Purchaser’s ownershipor, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubtif such redaction would result in pertinent information being omitted, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokersif Parent delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Purchaser. Purchaser agrees to (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall to cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement ) retain and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from preserve all books and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process records and all other documents that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access it and its Affiliates with respect to any information provided to such other party acquire pursuant to this Section 5.2(fAgreement for at least eight years following the Closing Date (or longer if required by applicable Law). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During Until the period between the Contract Date Closing, subject only to applicable rules and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination regulations of the Books FCC and Records as Purchaser may reasonably request. Any investigationprovided that Buyer shall agree to be bound by any confidentiality provisions of the Material Contracts, examination or interview by Purchaser the Company shall, at the sole cost and expense of employees of any of Seller Buyer, afford to Buyer and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at representatives (including accountants and counsel) reasonable times access, in each case, during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaserhours, upon reasonable prior notice and during normal in such manner as will not unreasonably interfere with the conduct of the business hours, through its employees and representatives, of the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller Company or any of its Affiliates subsidiaries, to all properties, books, records, and Tax Returns of the Company and each of its subsidiaries and all other information with respect to their respective businesses, together with the opportunity, at the sole cost and expense of Buyer, to make copies of such books, records, and other documents and to discuss the business of the Company and each of its subsidiaries with such officers, directors, and counsel for any reasonable business purpose (including the Company as is Buyer deems reasonably necessary for the purpose purposes of determining whether or not an Insurance Contract has met familiarizing itself with the diversification requirements Company, each of Section 817(h) of its subsidiaries and the Code)Stations, including the preparation or examination of Purchaser’s Tax Returns, regulatory filings right to visit the Stations; provided that such Station visits shall be scheduled at least five (5) Business Days in advance and financial statements, but only shall be conducted in a manner intended to minimize the disruption to the extent that operations of such records of Parent, Seller or any of their Affiliates relate to MONY or the BusinessStation; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records Buyer shall not unreasonably interfere with contact any Station personnel regarding the business operations of Seller or its Affiliates.
(c) Following transactions contemplated by this Agreement without the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable express prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, consent of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) aboveCompany. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any All information provided pursuant to this Section 5.2 Agreement shall be remain subject in all respects to the Confidentiality Agreement until such time as the transactions contemplated by this Agreement have been consummated at the Closing. In furtherance of and subject to the applicable provisions foregoing, at the sole cost and expense of Section 5.3Buyer, the Company shall authorize and request its independent public accountants to meet with Buyer and its representatives, including Buyer's independent public accountants, to discuss the business and accounts of the Company and its subsidiaries and request its independent public accountants to make available (with the opportunity to make copies at the sole cost and expense of Buyer) to Buyer and its representatives, including its independent public accountants, all the work papers of its accountants related to their audit of the consolidated financial statements and Tax Returns of the Company and its subsidiaries.
(b) Within 30 days after the end of each calendar month, the Company shall deliver to Buyer for the Company and its subsidiaries, taken as a whole, monthly operating statements (in a form consistent with the monthly operating statements previously supplied to Buyer) prepared in the ordinary course of business for internal purposes. In addition, within 45 days after the end of each calendar quarter, the Company shall deliver to Buyer quarterly statements prepared in the ordinary course for internal purposes containing a listing of all trade and barter agreements of the Stations showing the status of all such agreements as of the end of the quarter. The Company or a subsidiary of the Company shall deliver to Buyer the rating books for the Stations promptly following receipt of the same by any officer or director of the Company. In addition, promptly following the distribution to the Company by the Stations, the Company will provide Buyer with copies of the Stations' weekly sales pacing reports.
Appears in 1 contract
Sources: Stock Purchase Agreement (Capstar Broadcasting Partners Inc)
Access and Information. (a) During From the period between date hereof until the Contract Date and the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant subject to any of the provisions of this Section 5.2 shall be conducted or occur at Applicable Law, Seller, in its reasonable times during normal business hours discretion and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate not unreasonably disruptive to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to Business Employees and the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide afford Purchaser and its Affiliates, subject to any contractual restrictions, reasonable access during normal business hours upon reasonable advance notice to the books and records of the Business and senior management of the Target Company, its Subsidiaries and their respective agents and auditors to the extent reasonably required by Purchaser to ensure an orderly and efficient transition of the Business to Purchaser, to prepare for the Closing and to facilitate the satisfaction of the conditions to the Closing under Article VI or as otherwise required in connection with any Transaction Document or in furtherance of the transactions contemplated thereby; provided, however, that in no event shall Purchaser have access to any information (i) that relates to any portion of the business of Seller or its Affiliates that is not being transferred pursuant to this Agreement (including any consolidated, combined, affiliated or unitary Tax Return which includes Seller or any of its Affiliates or any Tax-related work papers) or (ii) that in Seller’s reasonable determination, the disclosure of which could be reasonably expected to affect any legal privilege or result in (A) the disclosure of any trade secrets, (B) the violation of any obligations of Seller or Seller’s Affiliates with respect to confidentiality if Seller or Seller’s Affiliates shall have used commercially reasonable efforts to obtain the consent of such third party to such inspection or disclosure or (C) the violation of Applicable Law. In the event that disclosing information would violate any obligation of Seller or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so, and Seller shall use its reasonable best efforts to enable such information to the Affiliated Distributors be made available in a way that are parties would not violate such confidentiality obligations, Applicable Law, including, but not limited to, providing such information in a redacted format, or, if such redaction would result in pertinent information being omitted, Seller shall make such information available if Purchaser delivers confidentiality undertakings reasonably satisfactory to Seller. Notwithstanding anything to the Distribution Agreementscontrary herein, the auditors and independent accountants of Seller or any of its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such auditors or accountants. Notwithstanding anything to the contrary herein, neither Seller nor any of its Affiliates shall be required to disclose to Purchaser or any Representative of Purchaser any consolidated, combined, affiliated or unitary Tax Return which includes Seller or any of its Affiliates or any Tax-related work papers, except, in accordance each case, for pro forma information related solely to the Target Company and/or its Subsidiary.
(b) For a period of six (6) years following the Closing, to the extent permitted by Applicable Law and to the extent not unreasonably disruptive to the Business, Purchaser agrees to provide (or cause its Affiliates to provide) Seller, subject to any contractual restrictions, reasonable access during normal business hours upon reasonable advance notice to all necessary access to all books and records and other documents (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) of the Target Company and its Subsidiaries that it acquires pursuant to this Agreement and to the Target Company’s and its Subsidiaries’ assets, properties and Representatives, in each case, to the extent that such access is reasonably required by Seller or its Affiliates, (i) to prepare financial statements, Tax filings or regulatory filings of Seller in respect of periods ending on or prior to the Closing Date, (ii) to comply with the terms of the Distribution Agreementsany Transaction Document, as any Applicable Law or request of any Governmental Authority, or (iii) to defend or prosecute any judicial, arbitral or regulatory Proceeding to which Seller or any of its Affiliates is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect a party relating to the Insurance Contractsbusiness and affairs of the Target Company and its Subsidiaries prior to the Closing, and none in each case, subject, in the case of any Confidential Information of Purchaser or any of its Affiliates shall(including, whether directly for the avoidance of doubt, the Target Company and its Subsidiaries), to Seller and its Representatives agreeing to maintain the confidentiality of such information (except in the case of information required to prepare Tax filings or indirectlyregulatory filings of Seller in respect of periods ending on or prior to the Closing Date); provided, support however, that in no event shall Seller have access to any information the disclosure of which, based on advice of Purchaser’s counsel, or sponsor a program that is intended or in Purchaser’s reasonable determination, would reasonably be expected to adversely affect any legal privilege or result in (A) the replacement disclosure of any trade secrets, (B) the Distributors as servicers violation of any obligations of Purchaser or brokers of record Purchaser’s Affiliates (including, for the Insurance Contracts. Purchaser shall promptly make any changes in avoidance of doubt, the servicer or broker of record Target Company and its Subsidiaries) with respect to confidentiality if Purchaser or Purchaser’s Affiliates (including, for the Business requested by any Affiliated Distributor that is a avoidance of doubt, the Target Company and its Subsidiaries) shall have used commercially reasonable efforts to obtain the consent of such third party to such inspection or disclosure or (C) the violation of Applicable Law. In the event that disclosing information would violate any obligation of Purchaser or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a Distribution Agreement; provided redacted format, or, if such redaction would result in pertinent information being omitted, Purchaser shall make such information available if Seller delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Purchaser. Notwithstanding anything to the contrary in this Section 5.4(b), the auditors and independent accountants of Purchaser or any of its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such auditors or accountants.
(c) For a period of six (6) years following the Closing, to the extent permitted by Applicable Law and to the extent not unreasonably disruptive to the Seller, Seller agrees to provide (or cause its Affiliates to provide) Purchaser, subject to any contractual restrictions, reasonable access during normal business hours upon reasonable advance notice to all necessary access to all books and records and other documents of the Target Company and its Subsidiaries, in each case, to the extent that such requested change would not violate Applicable Law books, records and other documents that are in Seller’s possession or control and access is reasonably required by Purchaser or its Affiliates, (i) to prepare financial statements, Tax filings or regulatory filings of Purchaser in respect of periods ending on or prior to the Closing Date, (ii) to comply with the terms of any Contract Transaction Document, any Applicable Law or request of any Governmental Authority, or (iii) to defend or prosecute any judicial, arbitral or regulatory Proceeding to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor party relating to the request business and affairs of the Target Company and its Subsidiaries prior to the Closing, in each case, subject, in the case of any other Person to change the servicer or broker Confidential Information of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser Seller or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements andincluding, for the avoidance of doubt, the Target Company and its Subsidiaries), to Purchaser shall not make and its Representatives agreeing to maintain the confidentiality of such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence case of this Section 5.2(e) information required to prepare Tax filings or regulatory filings of Purchaser in Section 5.14(f), each respect of Parent and Seller shall, and shall cause its Affiliates to, use information relating periods ending on or prior to the Business only for the purpose of complyingClosing Date); provided, or causing its applicable Affiliates however, that in no event shall Purchaser have access to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision based on advice of access to which, as reasonably determined by such partySeller’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such partyin Seller’s counselreasonable determination, would reasonably be expected to violate Applicable Laws so long as adversely affect any legal privilege or result in (A) the party granting access disclosure of any trade secrets, (B) the violation of any obligations of Seller or Seller’s Affiliates (including, for the avoidance of doubt, the Target Company and its Subsidiaries) with respect to confidentiality if Seller or Seller’s Affiliates (including, for the avoidance of doubt, the Target Company and its Subsidiaries) shall have used its commercially reasonable efforts to provide obtain the consent of such information without third party to such inspection or disclosure or (C) the violation of Applicable Law. The party granting access shall promptly provide, In the event that disclosing information would violate any obligation of Seller or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Seller shall make such information available if Purchaser delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Seller. Notwithstanding anything to the contrary in this Section 5.4(c), the auditors and independent accountants of Seller or any information provided of its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such other party pursuant auditors or accountants. Notwithstanding anything to the contrary in this Section 5.2(f5.4(c). Any information provided pursuant to this Section 5.2 , neither Seller nor any of its Affiliates shall be subject required to disclose to Purchaser or any Representative of Purchaser any consolidated, combined, affiliated or unitary Tax Return which includes Seller or any of its Affiliates or any Tax-related work papers, except, in each case, for pro forma information related solely to the applicable provisions of Section 5.3Target Company and/or its Subsidiary.
Appears in 1 contract
Access and Information. (a) During With respect to each Subject Company, from the period between the Contract Date and date hereof until the Closing Dateat which such Subject Company is sold, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant subject to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedapplicable Law, howeverParent, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate not unreasonably disruptive to MONY or the Business; (ii) allow Purchaser to interview business and employees of Parentsuch Subject Company, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide (i) afford Purchaser and its Affiliates, subject to any confidentiality restrictions, reasonable access during normal business hours upon reasonable advance notice to the books and records and other documents of the Subject Company and assets, properties and senior management and personnel of such Subject Company and its Affiliates, agents and auditors, and (ii) promptly furnish, or cause to be furnished, to Purchaser such technical, financial and operating data and other information (or copies thereof) with respect to such Subject Company, as may from time to time be reasonably requested by Purchaser, in each case, to the extent reasonably required by Purchaser to ensure an orderly and efficient transition of (including for the purposes of retaining personnel (including Key Personnel) of or related to) such Subject Company to Purchaser, to prepare for the Closing relating to such Subject Company or any financing contemplated by Section 5.14 and to facilitate the satisfaction of the conditions to the Closing relating to such Subject Company under Article VI; provided, however, that in no event shall Purchaser have access to any information (i) that relates solely to any portion of the business of Parent or its Affiliates that is not being transferred pursuant to this Agreement or (ii) in Parent’s reasonable determination, the disclosure of which would violate applicable Law, or could affect any legal privilege. In the event that disclosing information would violate any obligation of Parent or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Parent shall make such information available if Purchaser delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Parent. No information provided to or obtained by Purchaser pursuant to this Section 5.5(a) or otherwise obtained after the execution of this Agreement shall limit or otherwise affect the remedies available hereunder to Purchaser (including Purchaser’s right to seek indemnification pursuant to Section 8.2), or the representations or warranties of, or the conditions to the Affiliated Distributors that are parties obligations of, the Parties hereto.
(b) Following the first Closing hereunder until the sixth (6th) anniversary of such Closing, to the Distribution Agreementsextent permitted by applicable Law, Purchaser agrees to provide (or cause its Affiliates to provide) Parent with all necessary access to all books and records and other documents that Purchaser has acquired pursuant to this Agreement and to its Representatives to the extent that such access is reasonably required by Parent or any of its Affiliates and is not unreasonably disruptive to the business and employees of Purchaser and its Affiliates, (i) to prepare any required financial statements, Tax filings or regulatory filings of Parent in accordance respect of periods ending on or prior to any Closing, (ii) to comply with the terms of the Distribution Agreementsany Transaction Document, as any applicable Law or request of any Government Authority, (iii) to defend or prosecute any judicial, arbitral or regulatory proceeding to which Parent or any of its Affiliates is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect a party relating to the Insurance Contractsbusiness 58 and affairs of any Subject Company prior to any Closing or (iv) in connection with any claim for indemnity made under or pursuant to this Agreement, and none in each case, subject in the case of any Confidential Information of Purchaser or any of its Affiliates shallto Parent and its Representatives agreeing to maintain the confidentiality of such information; provided, whether directly however, that in no event shall Parent have access to any information the disclosure of which, based on advice of Purchaser’s counsel, or indirectlyin Purchaser’s reasonable determination, support would violate applicable Law or sponsor a program could destroy any legal privilege. All such information made available to Parent under this Section 5.5(b) shall be deemed Confidential Information and shall be subject to Section 5.6 (including Section 5.6(c)). In the event that is intended disclosing information would violate any obligation of Purchaser or would reasonably be expected to result in the replacement any of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record its Affiliates with respect to confidentiality, the Business requested Parties shall reasonably cooperate so the information might be made available in a redacted format. Purchaser agrees to (or to cause its Affiliates to) retain and preserve all books and records and all other documents that it and its Affiliates acquire pursuant to this Agreement in accordance with Purchaser’s internal document retention policies.
(c) Following the first Closing hereunder until the sixth (6th) anniversary of such Closing, to the extent permitted by any Affiliated Distributor that is a party applicable Law, Parent agrees to a Distribution Agreement; provided provide (or cause its Affiliates to provide) Purchaser with all necessary access to all books and records and other documents of Parent and to its Representatives to the extent that such requested change would access is reasonably required by Purchaser or any of its Affiliates and is not violate Applicable Law unreasonably disruptive to the business and employees of Parent and its Affiliates, (i) to prepare any required financial statements, reports (including servicer or investor reports), Tax filings or regulatory filings of Purchaser, including with respect to any Securitization Transaction, in respect of periods ending on or prior to any Closing, (ii) to comply with the terms of any Contract Transaction Document, any applicable Law or request of any Government Authority, (iii) to defend or prosecute any judicial, arbitral or regulatory proceeding to which Purchaser or any of its Affiliates (including MONYwhich, as of and after a Closing, shall include any Subject Company transferred at such Closing) is a party. Purchaser shall not honor party relating to the request business and affairs of the applicable Target Business Segment prior to such Closing or (iv) in connection with any claim for indemnity made under or pursuant to this Agreement, in each case, subject in the case of any other Person to change the servicer or broker Confidential Information of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser Parent or any of its Affiliates to Purchaser and its Representatives agreeing to maintain the confidentiality of such information; provided, however, that in no event shall Purchaser have access to any information the disclosure of which, based on advice of Parent’s counsel, or in Parent’s reasonable determination, would violate applicable Law or could destroy any legal privilege. All such information made available to Purchaser under this Section 5.5(c) shall be deemed Confidential Information and shall be subject to Section 5.6 (including MONY) is a party.
(e) Except as set forth in Section 5.6(c)). In the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each event that disclosing information would violate any obligation of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Lawrespect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format. Parent agrees to (or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating ) retain and preserve all books and records and all other documents that it and its Affiliates transfer to the Business only for the purpose of complying, or causing its applicable Affiliates Purchaser pursuant to comply, with their respective obligations under this Agreement in accordance with Parent’s internal document retention policies.
(d) From the date hereof until the applicable Closing, Parent shall provide to Purchaser copies of all servicer and the Distribution Agreements (including security holder reports required to be delivered by any purpose relating to compliance by ParentSubject Company, Seller 59 or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective its Affiliates, mayunder each Securitization Transaction, from and after within five Business Days following the Contract Date or as promptly thereafter as date such report is reasonably practicable, include any information relating required to be delivered under the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractapplicable Securitization Instruments.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstandingWithin thirty (30) days of the date hereof, the party granting access may withhold any document (or portions thereof) or information Parent shall make available to Purchaser complete copies of (i) that is subject all material Contracts related to the terms of a non-disclosure agreement with a third partyMaterial Indebtedness, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver any Contract for employment of any individual or firm on a full-time, part-time or consulting or other basis providing annual compensation in excess of $300,000, to the extent such privilege or Contract is in the possession of Parent, (iii) if the provision a list of access to such document each Insurance Policy not set forth on Section 3.17 of Parent’s Disclosure Letter and (or portion thereofiv) or information, as determined by such partya list of all Scheduled Intellectual Property not listed on Section 3.14(a) of Parent’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3Disclosure Letter.
Appears in 1 contract
Access and Information. (a) During From the period between the Contract Date and date hereof until the Closing Date, Purchaser subject to any applicable Law and subject to any applicable privileges (including the attorney-client privilege), trade secrets, and contractual confidentiality obligations, upon reasonable prior notice, Seller shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller afford Buyer and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at Representatives reasonable times access, during normal business hours hours, to the books and upon reasonable prior notice records, offices and properties of the Company, furnish to SellerBuyer such additional financial and operational data and other information regarding the Company as Buyer may from time to time reasonably request and make reasonably available to Buyer the employees of the Company, Seller or its Affiliates whose assistance and expertise is necessary to assist Buyer in connection with Buyer’s preparation to integrate the Company into Buyer’s organization following the Closing; provided, however, that such actions by Purchaser shall Buyer will not unreasonably interfere be entitled to (i) any information relating to bids received from others in connection with the normal operation transactions contemplated by the Transaction Documents and information and analysis (including financial analysis) relating to such bids, (ii) any information the disclosure of which would jeopardize any privilege available to Seller, the BusinessCompany or their respective Affiliates, (iii) any information the disclosure of which would cause Seller, the Company or their respective Affiliates to breach a confidentiality obligation or (iv) any information the disclosure of which would result in a violation of Law. Notwithstanding any other provisions of this Section 5.2, Purchaser Any such access or requests shall (x) be supervised by such Persons as may be designated by Seller and Seller shall cooperate (y) be conducted in implementing the provisions of this Section 5.2 such a manner so as not to prevent or unreasonably interfere with Parent’s and any of the businesses or operations of Seller’s compliance with Section 5.1 hereof.
(b) Following , the Closing Date, each of Parent and Seller shall, Company or their respective Affiliates and shall cause its Affiliates to: not contravene any applicable Law; provided further, however, that Seller and the Company will make appropriate substitute disclosure arrangements, if available, under circumstances in which the restrictions of the foregoing provision apply (other than with respect to the restrictions in clause (i) allow Purchaserabove). Buyer shall not conduct any sampling, upon reasonable boring, drilling or other invasive investigation activities on any property owned, leased or used by the Company without the prior notice written consent of Seller. All requests for information made pursuant to this Section 6.1(a) shall be directed to such Person or Persons as may be designated by Seller, and during normal business hours, through its employees and representativesBuyer shall not directly or indirectly contact any Representative of Seller, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller Company or any of their respective Affiliates for without the prior approval of such designated Person or Persons. Buyer further agrees to comply fully with all rules, regulations and instructions issued by Seller, the Company and their respective Affiliates or other Persons in respect of Buyer’s or its Representatives’ actions while upon, entering or leaving any properties of Seller or the Company. Buyer acknowledges and agrees that any information received in connection with this Section 6.1(a) will be subject to the terms and conditions of the Confidentiality Agreement.
(b) From and after the Closing, in connection with any reasonable business purpose relating (other than in connection with any dispute between Seller or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand), including (i) in response to the Businessrequest or at the direction of a Government Entity, including (ii) the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process documents related to Tax matters and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary determination of any matter relating to the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary rights or obligations of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates under this Agreement or any other Transaction Document (including matters contemplated by Section 2.4), subject to any applicable Law and any applicable privileges (including the attorney- client privilege) and contractual confidentiality obligations, upon reasonable prior notice, Buyer shall have no obligation (A) afford Seller and its Representatives reasonable access, during normal business hours, to maintain or retain any books the books, data, files, information and records of Buyer and its Affiliates (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (B) furnish to Seller such additional financial and other information as Seller may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), in each case to the extent that electronic or paper copies or originals of such books and records are delivered relating to Purchaser or any of its Affiliates (including MONY) at the Company for periods ending on or prior to the Closing. Access Closing Date; provided, however, such information shall be limited to that required or reasonably necessary in connection with such employees reasonable business purpose and records shall be provided at the sole cost and expense of Seller; provided further, however, that such access or request shall not unreasonably interfere with the business or operations of Seller Buyer or any of its Affiliates.
(c) Following For 180 days following the Closing Date, Purchaser shall, Seller shall coordinate and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice cooperate fully with Buyer in exchanging such information and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesproviding such assistance, in each case on a timely basis, as Buyer may reasonably request and at the case sole cost and expense of either clause (i)(A) or (i)(B)Buyer, in connection with the preparation and submission of any reports and filings to Government Entities as required under or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available pursuant to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its AffiliatesEnvironmental Laws.
(d) Following Buyer hereby agrees to defend, indemnify and hold harmless each of the Closing DateSeller Indemnified Parties from and against any and all Losses attributable to personal injury, Purchaser shalldeath or physical or other property damage, and shall cause or violation of Seller’s or its Affiliates toAffiliate’s or any third Person operator’s rules, provide such information regulations or operating policies of which Buyer or its Representatives associated with the Losses had been informed in advance in writing, to the Affiliated Distributors that are parties extent arising out of, resulting from or relating to the Distribution Agreementsactions of Buyer or its Representatives in connection with any field visit, in accordance with the terms environmental property assessment, sampling, boring, drilling or other invasive investigation activities or other due diligence activity conducted by Buyer or any of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers its Representatives with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date Company and the Closing DateCompany Systems, each of Parent and Seller shallEVEN IF SUCH LOSSES ARISE OUT OF OR RESULT FROM, and shall cause its Affiliates toSOLELY OR IN PART, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by ParentTHE SOLE, Seller or any of their respective Affiliates with any Applicable LawACTIVE, or to dealings with any Governmental AuthorityPASSIVE, relating to the ownershipCONCURRENT OR COMPARATIVE NEGLIGENCE, operation or administration of the Business). Following the Closing DateSTRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW OF OR BY ANY OF THE SELLER INDEMNIFIED PARTIES, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements andEXCEPTING ONLY LOSSES ACTUALLY RESULTING ON ACCOUNT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF ANY OF THE SELLER INDEMNIFIED PARTIES; provided, for the avoidance of doubt, Purchaser the Parties agree that in no event shall not make such information available any Seller Indemnified Party be entitled to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only indemnification by Buyer for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver Losses arising out of any such privilege preexisting environmental contamination or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable noncompliance with Environmental Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Securities Purchase Agreement
Access and Information. (a) During the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, Subject to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 7.02, Section 8.03, Section 8.12, Section 17.16 and clause (xi) of Schedule 10.01 and upon reasonable notice, Seller shall grant, or cause to be conducted or occur at reasonable times granted, to Buyer and its Representatives access during normal business hours throughout the Interim Period to the Refinery, the Assets (including for the purpose of performing an update to the Survey) the Refinery Books and upon Records (subject to any confidentiality agreements, applicable legal restrictions (including employee consents) and any applicable legal privileges) and the employees of the Seller Companies for the purposes of business separation, knowledge transfer or other transition-related activities, including any transition activities included in the transition plans created pursuant to Section 8.03(a) and evaluating the IT Swapkit and the Process Control Domain. Subject to the provisions of clause (x) and clause (xi) of Schedule 10.01, during the Interim Period, Seller shall use commercially reasonable prior notice efforts to Sellerfurnish, or cause to be furnished, to Buyer and its Representatives data and information concerning the Assets and the Operations that may reasonably be requested by Buyer for the purposes of business separation, knowledge transfer or other transition related activities, including any transition activities included in the transition plans created pursuant to Section 8.03(a). Notwithstanding the preceding sentences to the contrary, nothing in this Agreement shall be construed to permit Buyer or its Representatives to have access to, and the Refinery Books and Records shall not include, any files, records, contracts or documents of the Seller Companies or their respective Affiliates relating to (a) a Seller Company’s or its Affiliate’s inter-company or intra-company feedstock and product pricing information, internal transfer prices, hedging activity records and hydrocarbon inventory valuation procedures and records; (b) the negotiation or execution of this Agreement; (c) any information the disclosure of which would result in a violation of Applicable Law; or (d) any information the disclosure of which would jeopardize any privilege available to Seller or its Affiliates relating to such information or would cause Seller or its Affiliates to breach a material confidentiality obligation or other material contractual obligation to any Third Party; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesthat, in the case of either clause subsection (i)(A) or (i)(Bd), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to event Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, determines that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of any requested access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege Buyer would cause Seller or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to providebreach a material confidentiality obligation or other material contractual obligation to any Third Party, any consent requested by Seller will take all reasonable steps within its control to obtain the requisite waivers or its Affiliates’ independent accountants other relief from such obligations in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement order to provide Buyer with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3requested access.
Appears in 1 contract
Access and Information. (a) During Upon reasonable prior notice and subject to Applicable Law relating to the period between exchange of information, the Contract Date Company shall, and shall cause the Closing DateCompany Subsidiaries to, Purchaser shall be entitled, through its employees and representatives and at its own expense, afford to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Holdco and its Affiliates or Representatives reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice and without undue disruption of normal business activity to Sellerthe books, records, personnel and facilities of the Company and furnish reasonably promptly to Holdco such information concerning the business, properties, contracts, assets, and liabilities and other aspects of the Company and its Subsidiaries as Holdco or its Representatives may reasonably request; provided, however, provided that such actions by Purchaser (i) the Company and the Company Subsidiaries shall not unreasonably interfere be obligated to provide access to (A) any information that, in the reasonable judgment of the Company, would result in the loss of attorney-client or other privilege with respect to such information, (B) any information that would result in a breach of an agreement to which the Company or any of the Company Subsidiaries is a party, (C) any information that, in the reasonable judgment of the Company, would violate any Applicable Law or any request or requirement of any Governmental Entity, or may cause significant harm to the Company or its Subsidiaries if the Merger were not consummated, (D) any documents prepared in connection with the normal operation consideration of an Alternative Transaction Proposal or (E) materials prepared in connection with the Company Board’s consideration of the Business. Notwithstanding any other provisions Merger (unless otherwise required to be furnished pursuant to this Agreement or Applicable Law) (it being agreed that, in the event that the restrictions of this Section 5.2clause (i) apply, Purchaser the Company and Seller the Company Subsidiaries shall provide Holdco with a reasonably detailed description of the information not provided and the Company and Holdco shall cooperate in implementing good faith to design and implement alternative disclosure arrangements to enable Holdco to evaluate any such information without violating the provisions of applicable privilege or breaching the Company’s obligation to any third party), (ii) no investigation pursuant to this Section 5.2 so as not 8.1 shall affect any representations or warranties made herein or the conditions to prevent or interfere with Parent’s the obligations of the respective parties to consummate the Merger and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shallother transactions contemplated by this Agreement, and (iii) the Company and the Company Subsidiaries shall cause its Affiliates to: (i) allow Purchasernot be required to conduct, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or permit Holdco or any of its Affiliates for Representative to conduct, any reasonable business purpose (including as is reasonably necessary for the purpose environmental investigation or Table of determining whether Contents sampling of soil, air, surface water, building material, groundwater or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose other environmental media relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, Company Leased Property. Holdco agrees that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shallit will not, and shall will cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall Representatives not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating obtained pursuant to this Section 8.1 for any competitive or other purpose unrelated to the Insurance Contracts or the holders consummation of the Insurance Contracts only for Merger. Without limiting the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration generality of the Business). Following foregoing, Holdco shall schedule and coordinate all inspections with the Closing Date, (i) Purchaser shall, Company and shall cause its Affiliates to, use any information relating to give the Insurance Contracts Company at least three (3) Business Days prior written notice thereof. Except as otherwise expressly permitted or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under this Agreement, each party shall continue to abide by the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Mutual Nondisclosure Agreement between GL Capital Management GP Limited and the Distribution Agreements Company, dated October 23, 2015 (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business“Confidentiality Agreement”). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. Prior to the Closing, the Purchaser shall be entitled to make or cause to be made such investigation of the Companies, and the financial and legal condition thereof, as the Purchaser deems necessary or advisable, and the Company and the Counsel Entities shall cooperate with any such investigation. In furtherance of the foregoing, but not in limitation thereof, the Company shall (a) During permit the period between Purchaser and its agents and representatives or cause them to be permitted to have full and complete access to the Contract Date premises, operating systems, computer systems (hardware and software) and books and records of the Companies upon reasonable notice during regular business hours, (b) furnish or cause to be furnished to the Purchaser such financial and operating data, projections, forecasts, business plans, strategic plans and other data relating to the Companies and the Closing Date, Businesses as the Purchaser shall be entitled, through its employees request from time to time and representatives and at its own expense, (c) cause the Accountants to make such examination of furnish to the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or accountants access pursuant to all work papers relating to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice periods covered by the Financial Statements. Prior to Seller; providedthe Closing, however, that such actions by the Purchaser shall not unreasonably interfere use any information provided to it in confidence for any purpose unrelated to the Transaction Agreements. The Counsel Entities and the Company shall not use any information provided to them in confidence by the Purchaser for any purposes unrelated to the Transaction Agreements. Except with respect to publicly available documents, in the normal operation event that this Agreement is terminated, (a) the Purchaser will deliver to the Company all documents obtained by it from the Companies or the Counsel Entities in confidence and any copies thereof in the possession of the Business. Notwithstanding any other provisions Purchaser or its agents and representatives or, at the option of this Section 5.2the Purchaser, the Purchaser shall cause all of such documents and Seller all of such copies to be destroyed and shall cooperate in implementing certify the provisions of this Section 5.2 so as not destruction thereof to prevent or interfere with Parent’s the Company and Seller’s compliance with Section 5.1 hereof.
the Counsel Entities and (b) Following the Closing DateCounsel Entities and the Company will deliver to the Purchaser all documents obtained by them from the Purchaser in confidence and any copies thereof in the possession of the Company and/or either of the Counsel Entities or their agents and representatives or, each at the option of Parent the Company and Seller shallthe Counsel Entities, the Company and the Counsel Entities shall cause all of such documents and all of such copies to be destroyed and shall cause its Affiliates to: certify the destruction thereof to the Purchaser. No investigation by the Purchaser heretofore or hereafter made shall modify or otherwise affect (ia) allow Purchaserany representations and warranties of the Company or the Counsel Entities made pursuant to this Agreement, upon reasonable prior notice and during normal business hourswhich shall survive any such investigation, through its employees and representativesor (b) the conditions to the obligation of the Purchaser to consummate the transactions contemplated hereby, provided that the right, at Purchaser’s expense, to examine and make copies Purchaser shall promptly notify the Counsel Entities in writing of any records retained by Seller or any facts and circumstances of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods which it obtains knowledge prior to the Closing that indicate that any such representations and warranties are inaccurate in any material respect (B) interview Purchaser’s except for any representation and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available warranty which is qualified hereunder as to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreementsmateriality, as to which such notification shall be given if the Purchaser obtains knowledge that such representation and warranty is necessary inaccurate in any respect); failure to enable such Affiliated Distributors to provide the Independent Distributors comply with the information necessary to service customers this notification obligation with respect to particular facts and circumstances shall preclude the Insurance Contracts, Purchaser from relying upon such facts and none of Purchaser or circumstances in bringing any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record action hereunder for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyindemnification.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During So long as this Agreement remains in effect, from the period between the Contract Date and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions date of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedAgreement until the Closing, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller Sellers shall, and shall take all steps as may be necessary to cause its Affiliates the Acquired Companies to: (i) allow , give to Purchaser, upon reasonable prior notice Purchaser’s accountants, counsel, employees and other authorized representatives full access during normal business hours, through its employees without unreasonably interfering with the Acquired Companies’ business operations, to all of the properties and representativesfacilities, books and records, contracts, reports and Returns of the rightAcquired Companies. In addition, Sellers shall permit, and shall take all steps as may be necessary to cause the Acquired Companies to permit, at Purchaser’s expense, Purchaser, Purchaser’s accountants, counsel, employees and other authorized representatives access to examine such advisors and make copies of personnel (including, without limitation, any records retained by Seller employees, accountants or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(hactuaries) of the CodeAcquired Companies or of any other Affiliates of Sellers during normal business hours as may be reasonably requested by Purchaser in its review of the business of the Acquired Companies, the assets thereof and the above-mentioned documents and information.
(b) The parties hereto agree that with respect to the disclosure of information furnished hereunder or in connection herewith, they shall continue to be bound by the terms of that certain Confidentiality and Non-Disclosure Agreement dated October 1, 2004 (the “Confidentiality Agreement”), including the preparation between Ace INA Holdings Inc. (on behalf of itself and all of its subsidiary, parent or examination affiliated property and casualty holding companies) and Purchaser (on behalf of Purchaser’s Tax Returnsitself and all of its subsidiary, regulatory filings and financial statements, but only parent or affiliated companies). Sellers agree to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any cause each of their respective Affiliates for any reasonable purpose relating to comply with the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) provisions of the Code), regulatory and statutory filings and financial statements and Confidentiality Agreement as if each of them were parties to such agreement. Purchaser agrees to cause each Affiliate of Purchaser to comply with the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary provisions of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of Confidentiality Agreement until the Closing Date after giving reasonable prior written notice to Purchaser as if each of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access them were parties to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesagreement.
(c) Following Prior to the Closing DateClosing, the Sellers shall promptly notify Purchaser shall, and shall cause its Affiliates to: in writing of (i) allow Sellerall events, upon reasonable prior notice circumstances, facts and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY occurrences arising subsequent to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, date of this Agreement which could result in the case any breach of a representation or warranty or covenant of either clause (i)(A) Seller in this Agreement or (i)(B), which could have the effect of making any representation or warranty of either Seller in connection with the preparation this Agreement untrue or examination of Tax Returns, regulatory and statutory filings and financial statements; incorrect in any respect and (ii) maintain such books and records for Seller’s examination and copying in all other material developments affecting the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary Operations of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its AffiliatesAcquired Companies.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ace LTD)
Access and Information. (a) During the period between the Contract Date and the Closing DatePrior to Closing, Purchaser subject to applicable Law, Seller shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller permit Buyer and its Affiliates or access pursuant representatives (including representatives of Buyer's financing sources) to any of the provisions of this Section 5.2 shall be conducted or occur at have reasonable times access, during normal regular business hours and upon reasonable prior notice advance notice, to Seller; providedthe Company and its Subsidiaries and to their respective books, howeverContracts, that such actions by Purchaser shall not unreasonably interfere with records, facilities and properties (including reasonable access to conduct Phase I environmental investigations) and to the normal operation officers, key Employees, accountants and auditors of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser Company and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shallits Subsidiaries, and shall cause to furnish to Buyer such data and information (including financial and operations data) regarding the business of the Company and its Affiliates to: Subsidiaries as Buyer may reasonably request (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expenseincluding, to examine and make copies of the extent satisfying such criteria, any records retained data or information to facilitate the transactions contemplated by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the CodeFinancing Commitments), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only in each case to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall access does not unreasonably interfere with the business or operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller Company or any of their respective Affiliates Affiliates; provided that Buyer and such representatives comply with the confidentiality obligations contained herein and in the Confidentiality Agreement; and provided further that the foregoing shall not (i) require Seller to permit any Applicable Lawinspection, or to dealings with disclose any Governmental Authorityinformation, relating to that in its reasonable judgment would result in the ownershipdisclosure of any trade secrets or violate any of Seller's, operation the Company's or administration any of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers Subsidiaries' obligations with respect to confidentiality or (ii) require any disclosure by Seller, the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser Company or any of its Affiliates with Subsidiaries that reasonably could, as a result of such disclosure, have the effect of causing the waiver of any Applicable Law, or legal privilege. Seller agrees to dealings with use its commercially reasonable efforts to obtain waivers of any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), foregoing confidentiality obligations and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent Buyer and Seller shall, and shall cause its Affiliates to, agree to use information relating commercially reasonable efforts to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractenter into appropriate joint defense agreements.
(fb) Anything In addition to the contrary confidentiality arrangements contained herein, all information provided or obtained in Section 5.2(a), connection with the transactions contemplated by this Agreement (b), including pursuant to clause (c), (da) or (eabove) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is shall be held by Buyer in accordance with and subject to the terms of a non-disclosure agreement with a third partythe Confidentiality Agreement, dated March 28, 2002, between TPG Partners III, L.P. and Diageo (iithe "Confidentiality Agreement") that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access Seller shall have used its commercially reasonable efforts the right to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by enforce the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.the Confidentiality Agreement against Buyer as if it were Diageo and Buyer were TPG Partners III, L.
Appears in 1 contract
Access and Information. (a) During the period from the date of this Agreement to the Closing, upon the reasonable written request of the Purchaser and subject to compliance by the Purchaser with the terms of the confidentiality agreement entered into between TecInvest and Bruker Daltonik GmbH on October 6, 2020 (as amended from time to time) (the Contract Date "Confidentiality Agreement") and the Closing Dateapplicable Laws, the Sellers shall use their commercially reasonable efforts to ensure that the Acquired Companies (i) permit the Purchaser shall be entitled, through and its employees representatives reasonable access during Working Hours to the books and representatives records and at its own expense, to make such examination senior management of the Books Acquired Companies, and Records as (ii) provide to the Purchaser may reasonably request. Any investigation, examination any document or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any information in the possession of the provisions Acquired Companies, in both cases, as may be reasonably requested by the Purchaser for the purpose of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours preparing the Closing and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with facilitating the normal operation debt financing of the Business. Notwithstanding any other provisions transactions contemplated by this Agreement; and (iii) inform on regular basis on the progress of this Section 5.2, Purchaser and Seller shall cooperate in implementing remediation of the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofpast cyber incident.
(b) Following Notwithstanding anything in this Agreement to the Closing Datecontrary, each of Parent and Seller shall, and shall cause its Affiliates to: it is agreed that:
(i) allow Purchaser, upon reasonable prior notice and during such access or assistance shall not interfere with the normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) operations of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings Acquired Companies and financial statements, but only any such information being subject to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; Confidentiality Agreement;
(ii) allow Purchaser to interview employees such access or assistance may be limited as a result of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and a Pandemic Measure;
(iii) maintain such records for Purchaser’s examination and copying until at least notwithstanding the sixth anniversary of foregoing, the Closing Date, provided, Sellers' Agent shall not be required to provide access to any information which it reasonably believes that Seller it may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records not provide to the extent that electronic Purchaser by reason of confidentiality undertakings with a third party or paper copies by reason of antitrust or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.cartel Laws;
(civ) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreementsrefrain from, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support contacting any customer, supplier, agent, representative, creditor, co-contracting party (including franchisee, licensee or sponsor a program that is intended sublicense) or would reasonably be expected to result in the replacement advisor of the Distributors as servicers Acquired Companies or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change which is in commercial relationship with the servicer or broker of record Acquired Companies, except for Persons with respect to whom the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates relevant Affiliate (including MONYi) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date sustain usual commercial and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business professional relationships in the ordinary course of business, or (ii) seek to develop in the future, and in accordance with past practices (including any purpose relating to compliance by Parenteach case, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating without reference to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts Transaction or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), Acquired Companies and for the sole purpose of such professional and commercial relationships;
(v) all fees, costs, expenses and other purposes liabilities and obligations which may be incurred in connection with the debt financing of the transactions contemplated by Section 5.14(d) and (e) or required under this Agreement shall be for the terms sole account of the Distribution Agreements Purchaser; and,
(vi) for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth nothing in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and 6.4 shall cause its Affiliates to, use information relating be construed to be a condition precedent to the Business only financing of the Transaction or the Closing or otherwise, directly or indirectly, serve as a basis for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations any delay in Closing under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractAgreement.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During Prior to the period between Closing, the Contract Date Parent shall be entitled to make or cause to be made such reasonable investigation of the Business and the Closing DateFacility as the Parent deems necessary or advisable, Purchaser and the Company shall be entitledcooperate with any such investigation. In furtherance of the foregoing, through but not in limitation thereof, the Company shall permit the Parent and its employees agents and representatives to have reasonable and at its own expense, continued access to make such examination all applicable premises and books and records of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times Company during normal regular business hours and upon reasonable prior notice shall furnish such financial and operating data (including, but not limited to, projections, forecasts, business plans, strategic plans and other data relating to Sellerthe Business as the Parent shall reasonably request from time to time); provided, however, that such actions by Purchaser the Company shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have be under no obligation to maintain or retain any books and records deliver to the extent that electronic Parent any information in violation of any non-disclosure or paper copies or originals of such books and records are delivered confidentiality agreement (but shall be required to Purchaser or any of its Affiliates (including MONY) at or prior disclose to the ClosingParent the type of information not being so provided). Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY Prior to the extent relating to periods prior to Effective Time, neither the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in Parent nor the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser Acquirer shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party obtained pursuant to this Section 5.2(f). Any 4.9 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement and, if such transactions are not consummated, they will hold all information provided and documents obtained pursuant to this Section 5.2 4.9 in confidence unless and until such time as such information or documents otherwise become publicly available or unless it is advised by counsel that any such information or document is required by Law to be disclosed (and the Parent and the Acquirer shall be subject give reasonable advance notice of any intended disclosure of such information or documents to the applicable provisions Stockholder Representative in order to permit the Stockholder Representative to seek judicial protection from and against a contemplated disclosure). In the event that this Agreement is terminated, the Parent will deliver to the Company all documents so obtained by it and any copies thereof in the possession of Section 5.3the Parent or its agents and representatives or, at the option of the Parent, the Parent shall cause all of such documents and all of such copies to be destroyed and shall certify the destruction thereof to the Company. No investigation by the Parent or the Acquirer heretofore or hereafter made shall modify or otherwise affect any representations and warranties of the Company pursuant to this Agreement, which shall survive any such investigation.
Appears in 1 contract
Sources: Merger Agreement (Bel Fuse Inc /Nj)
Access and Information. (a) During the period between from the date of this Agreement to the Closing, except to the extent prohibited by applicable Law or the terms of any Contract Date and entered into prior to the Closing Datedate hereof for which Parent has been unable, Purchaser shall be entitled, through despite use of its employees and representatives and at its own expensereasonable best efforts, to make such examination obtain a consent or waiver from the other parties thereto (other than any Affiliate of the Books and Records Parent) to enable disclosure to LMC, or as Purchaser may would reasonably request. Any investigation, examination be expected to violate or interview by Purchaser of employees result in a loss or impairment of any attorney-client or work product privilege (it being understood that the parties shall use reasonable best efforts to cause such information to be provided in a manner that does not result in such violation, loss or impairment), and subject to the obligations of Seller LMC under the Confidentiality Agreement with respect thereto, Parent will permit (and its Affiliates or will cause the Transferred Subsidiaries to permit) Representatives of LMC to have reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedall premises, howeverproperties, that such actions by Purchaser shall not unreasonably interfere with the normal operation personnel, books, records, Contracts, commitments, reports of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shallexamination, and shall cause its Affiliates to: (i) allow Purchaserdocuments of or pertaining to the Transferred Business, and reasonable opportunity upon reasonable prior notice and during normal business hours, through its consultation with Parent to communicate with employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent Transferred Business (PROVIDED that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements Parent and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates Transferred Subsidiaries shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine be present by representative for all such contacts between LMC and make copiesany employee of the Transferred Business, whether in person, telephonic or otherwise), except with respect to DTV, as may be necessary to permit LMC to, at Seller’s its sole expense, of the books and records of MONY make, or cause to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesbe made, in the case of either clause (i)(A) or (i)(B), such investigations thereof as are reasonably necessary in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary consummation of the Closing DateTransactions, providedand Parent shall (and shall cause the Transferred Subsidiaries to) reasonably cooperate with any such investigations; PROVIDED that Parent's designees on the Board of Directors of DTV, that Purchaser may destroy such books subject to their fiduciary duties to DTV and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice stockholders, shall take no action to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations investigation of Purchaser DTV by LMC. No information or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts knowledge obtained in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party investigation pursuant to this Section 5.2(f). Any information provided 6.1 or otherwise shall affect or be deemed to modify any representation or warranty contained herein or delivered pursuant hereto or to this Section 5.2 shall be subject modify the conditions to the applicable provisions obligations of Section 5.3the parties hereto to consummate the Transactions.
Appears in 1 contract
Access and Information. 5.1.1 Prior to the Closing, except to the extent prohibited by applicable Law or by Contracts to which the Seller or any of its Subsidiaries is a party, the Seller will permit (a) During and will cause each of the period between the Contract Date other Seller Entities and the Closing Date, Purchaser shall be entitled, through its employees and Transferred Subsidiaries to permit) EXECUTION COPY -------------- representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or Purchasers to have access pursuant to any in the manner set forth on Section 5.1.1 of the provisions of this Section 5.2 shall be conducted or occur at reasonable times Seller's Disclosure Schedule during normal business hours and upon reasonable prior notice to all premises, properties, personnel, books, records, contracts, commitments, reports of examination and documents of or pertaining to each portion of the Water Business, the Transferred Subsidiaries (to the extent relating to any portion of the Water Business), the Transferred Assets and the Transferred Liabilities, as may be necessary to permit the Purchasers to, at their sole expense, make, or cause to be made, such investigations of any portion of the Water Business, the Transferred Subsidiaries (to the extent relating to any portion of the Water Business or as otherwise reasonably requested), the Transferred Assets or the Transferred Liabilities (including Phase I Environmental Site Assessments in general conformance with the standards specified by the American Society for Testing and Materials or other non-invasive environmental investigation, where the Purchasers have reasonable grounds to believe that there may be present Regulated Substances, with the assistance of one or more consultants reasonably acceptable to the Seller, and subject to the Seller's supervision) as the Purchasers deem necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement (subject to applicable competition and antitrust Laws), and the Seller shall (and shall cause the Seller Entities and the Transferred Subsidiaries to) reasonably cooperate with any such investigations, including any such non-invasive environmental investigations in the manner set forth on Section 5.1.1 of the Seller's Disclosure Schedule; provided, however, that that, in the case of any such actions by Purchaser shall not unreasonably interfere with the normal operation investigation of properties leased to any of the Business. Notwithstanding any other provisions Seller Entities or the Transferred Subsidiaries, the investigation shall be conducted, if at all, subject to the terms of this Section 5.2the applicable leases (but to the extent applicable, Purchaser and the Seller shall cooperate use commercially reasonable efforts to obtain any required consents under such leases; provided, that in implementing no event shall the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Codebe required to make payments to third parties under such leases in order to obtain their consent), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain following any books and records environmental investigations, the Purchasers shall, upon request of the Seller, promptly provide to the extent that electronic or paper copies or originals Seller the laboratory analytical results of such books investigations (including copies of any related Quality Assurance and records are delivered Quality Control data), and the Purchasers shall, at their sole expense, restore the property to Purchaser the condition it was in prior thereto. Anything in the foregoing notwithstanding, any information with regard to the Retained Business obtained by or provided to the Purchasers or their respective agents or representatives pursuant to this Agreement (including in connection with any environmental investigation and any materials, test results, conclusions or reports generated in connection therewith) shall be deemed "Evaluation Material" under, and be subject to the terms of, the Confidentiality Agreement, and in no event shall the Seller be required to provide access to privileged or attorney work product materials; provided that neither the Purchasers nor the Seller shall be prohibited from using reports of environmental investigations performed pursuant to this Agreement in any negotiation or proceeding between them relating to the interpretation or enforcement of this Agreement; and provided, further, that, while neither the Purchasers nor the Seller intend to waive any attorney-client privilege or work product protection that might otherwise protect any shared information from disclosure, the Purchasers and the Seller intend to work cooperatively in their common defense and response to legal obligations or liabilities that may be associated with the matters identified by such environmental investigations and will maintain a joint defense privilege or common interest attorney-client privilege with respect to any shared attorney-client materials or attorney work product of either the Purchasers or the Seller or any such materials or work product that is developed jointly in connection therewith. EXECUTION COPY --------------
5.1.2 In furtherance of its Affiliates the foregoing, but not in limitation thereof, the Seller shall (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates each of the other Seller Entities to: )
(ia) allow Seller, upon reasonable prior notice permit the Purchasers and during normal business hours, through their respective employees agents and representativesrepresentatives to have reasonable access to the premises, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY the Seller Entities (with respect to any portion of the Water Business or as otherwise reasonably requested) and the Transferred Subsidiaries (with respect to any portion of the Water Business or as otherwise reasonably requested), (b) furnish or cause to be furnished to the Purchasers such financial and operating data relating to the Seller Entities (with respect to any portion of the Water Business or as otherwise reasonably requested) and the Transferred Subsidiaries (with respect to any portion of the Water Business or as otherwise reasonably requested) as the Purchasers shall reasonably request from time to time (to the extent available), and (c) cause their accountants (subject to the execution by the Purchasers of such documents as shall be reasonably requested by such accountants) to furnish to the Purchasers and the Purchasers' accountants access to all work papers relating to any portion of the Water Business for any of the periods prior covered by any financial statements delivered to the Closing and (B) interview Purchaser’s and its Affiliates’ employeesPurchasers pursuant to this Agreement, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreementseach case, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as procedures set forth in Section 5.1.1 of the last sentence of this Section 5.2(e) or in Section 5.14(f)Seller's Disclosure Schedule. Prior to the Closing, between the Contract Date and the Closing Date, each of Parent and Seller shall, Purchasers shall not (and shall cause its Affiliates their respective Subsidiaries, representatives and agents not to, ) use any information relating obtained pursuant to this Section 5.1 for any purpose unrelated to the Insurance Contracts transactions described in this Agreement. Subject to Section 4.7 of this Agreement, no investigation by the Purchasers or their respective representatives or advisors prior to or after the holders date of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices this Agreement (including any purpose relating Additional Financial Information provided to compliance the Purchasers prior to the date hereof and any information obtained by Parentthe Purchasers pursuant to this Section 5.1) shall diminish, Seller obviate or cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractAncillary Agreement.
(f) Anything 5.1.3 Notwithstanding anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstandingSections 5.1.1 and 5.1.2, the party granting access may withhold Purchasers shall not be permitted to conduct any document (Phase II Environmental Assessments or portions thereof) or information (i) that is subject similar on-site activities prior to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3Closing.
Appears in 1 contract
Access and Information. (a) During Between the period between the Contract Date date of this Agreement and the Closing Date, Purchaser Seller shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller permit Buyer and its Affiliates or representatives to have reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expenseupon reasonable advance notice, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY the Business and shall provide Buyer with reasonable access to the extent relating to periods prior to the Closing Real Property, Assets and (B) interview Purchaser’s and its Affiliates’ employeesBusiness, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would access shall be conducted by Buyer and its representatives in such a manner as not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record interfere unreasonably with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent. Additionally, Seller or any of their respective Affiliates with any Applicable Law, or shall provide to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any Buyer in a timely manner all information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any requested by Buyer in order for Buyer to provide documentation and information relating to the Insurance Contracts in any “data mining” program Buyer's investors or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included potential investors in the Business, and . Buyer shall notify Seller in writing promptly upon its discovery of any holder thereofinformation which, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counselits good faith discretion, constitutes or would indicate a waiver breach by Seller of any representation, warranty, covenant or agreement of Seller hereunder. Should any information require any change in any Schedule attached hereto if the Schedule were dated the date of the occurrence or discovery of any such privilege fact or (iii) if the provision of access condition, Seller shall promptly deliver to Buyer a supplement to such document (or portion thereof) or informationSchedule incorporating such change, as determined by which will be deemed to have amended such party’s counselSchedule for all purposes. Unless Buyer timely exercises a right to terminate this Agreement pursuant to Section 10.3(c), would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party Seller's supplement pursuant to this Section 5.2(f)5.1 shall be deemed to amend this Agreement and any related Schedules and to have cured any misrepresentations or breach of representation or warranty that otherwise might have existed by reason of such fact or condition. Any information provided pursuant to this Section 5.2 5.1 shall be subject to the applicable provisions Confidentiality Agreement.
(b) For the period of Section 5.3seven (7) years after the Closing Date, Seller shall reasonably consider a request by Buyer for copies of or access to documents in Seller's possession which relate to the Business. The Seller shall not unreasonably withhold its consent to providing such documents. The Seller shall however be entitled to withhold its consent to a request for copies of, or access to documents where:
(i) the information is confidential or commercially sensitive to Seller or an Affiliate of Seller; or
(ii) the information is confidential to any third party; Provided, however, that such information will not be withheld if it is required to be disclosed by Buyer in connection with Buyer's compliance with any securities or other Law and such information pertains to or was used by the Business. Buyer shall reimburse Seller for any costs reasonably incurred by Seller in complying with a request for copies of or access to documents under this clause.
(c) Buyer will retain all books, records and other documents pertaining to the Business in existence at the Effective Time and transferred to Buyer as part of the Assets and will make the same available after the Effective Time for inspection and copying by Seller at such Person's expense during the normal business hours of Buyer upon reasonable request and upon reasonable notice. For a period of seven (7) years following the Closing Date, no such books, records or documents shall be destroyed by Buyer without first advising Seller in writing and giving Seller a reasonable opportunity to obtain possession thereof. Without limiting the generality of the foregoing, Buyer will make available to Seller and any Affiliate of Seller, and their respective representatives, all information deemed necessary or desirable by Seller in preparing their respective financial statements or tax returns. Seller shall provide to Buyer at the Closing or as soon thereafter as is reasonably possible all appropriate books and records of the Business being sold pursuant to this Agreement and the transaction contemplated hereby.
Appears in 1 contract
Access and Information. Subject to Section 6.4, Seller shall, and Seller shall cause the Company to afford to Buyer and its employees, accountants, actuaries, consultants, legal counsel, agents and other representatives (acollectively, the “Buyer Representatives”) During the period between the Contract Date reasonable access, at Buyer’s sole cost and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours to the officers, employees, agents, properties, offices and upon other facilities of the Company and to the books and records thereof and furnish promptly to Buyer and the Buyer Representatives such information concerning the business, properties, Contracts, records and personnel of the Company and the Company Subsidiaries (including financial, marketing, operating and other data and information) as may be reasonably requested, from time to time, by Buyer. Notwithstanding anything to the contrary contained herein, Buyer shall (i) provide Seller with reasonable advance notice of any request for access pursuant to this Section 6.3, (ii) not contact any customer, supplier, employee or other business partner of Seller, the Company or any Company Subsidiary without Seller’s prior notice to Seller; provided, however, that such actions by Purchaser consent thereto in writing (which consent shall not unreasonably interfere be withheld, conditioned or delayed) and (iii) avoid any undue disruption to the business operations of the Company and the Company Subsidiaries. Seller shall use commercially reasonable efforts to provide Buyer at least five days prior to the Closing, with the normal operation Company’s balance sheet as of July 4, 2021 and the income statement for the six-month period then ended. Nothing contained in this Agreement shall require the disclosure to or on behalf of Buyer of any bids, the identity of any bidder, confidentiality or non-disclosure agreements, letters of intent, expressions of interest or other proposals received in connection with transactions comparable to those contemplated by this Agreement, nor shall anything contained in this Agreement be construed as requiring the disclosure of any information to or on behalf of Buyer if such disclosure would, as determined by Seller, (w) cause significant competitive harm to any of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the rightCompany, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller a Company Subsidiary or any of their respective Affiliates for in the event the transactions contemplated hereby are not consummated (x) jeopardize any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer attorney-client or other dispute resolution process and legal privilege, (iiiy) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Datecontravene any applicable Law, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain fiduciary duty or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or binding agreement entered into prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence date of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices Agreement (including any purpose relating confidentiality agreement to compliance by Parentwhich any of Seller, Seller the Company, a Company Subsidiary or any of their respective Affiliates with any Applicable Lawmay be a party (it being understood that Seller, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement Company and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its Company Subsidiaries will use commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provideas described under (x) and (y) in an alternative manner so as not to jeopardize such privilege, or cause its Affiliates to providecontravene such Laws, any consent requested by its fiduciary duty or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter binding agreement (including entering into a customary reasonable joint defense agreement with the party granting access and its Affiliates with respect agreement)) or (z) contravene any obligation of secrecy or confidentiality to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3Governmental Entity.
Appears in 1 contract
Sources: Stock Purchase Agreement (Fiesta Restaurant Group, Inc.)
Access and Information. (a) During Seller shall permit Buyer and its finance providers (provided that such financing sources are accompanied by representatives of Buyer) and their respective advisers and other representatives after the period between date of this Agreement to have reasonable access, during regular business hours and upon reasonable advance notice, to the Contract Date Seller’s, Selling Subsidiaries’ and Transferred Companies’ properties and facilities, including the Closing DateReal Property, Purchaser subject to Seller’s reasonable rules and regulations, but not the right to perform any invasive or environmental testing or sampling or other “Phase I” or “Phase II” investigations without Seller’s prior consent, which consent shall be entitledwithheld or granted in Seller’s sole discretion, through its employees provided that Buyer shall maintain and representatives deliver evidence to Seller of adequate insurance before entering any Real Property and at its own expenseindemnify Seller for any losses arising as a result of any such access by Buyer. Seller shall furnish, or cause to be furnished, to make such examination of Buyer any financial and operating data and other information that is readily available with respect to the Books and Records Business as Purchaser may Buyer shall from time to time reasonably request. Any investigationIt is expressly understood by the parties hereto that, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of notwithstanding the provisions of this Section 5.2 shall be conducted 5.1, Seller, in its sole discretion, may deny or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding restrict any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: access (i) allow Purchaserinvolving possible breaches of applicable confidentiality agreements with third parties, upon reasonable prior notice and during normal business hoursenvironmental reviews the written work plan for which had not been previously approved by Seller in its sole discretion, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies or possible waivers of any records retained by applicable attorney-client privileges; (ii) to any manufacturing processes, know-how, operating instructions or other proprietary knowledge of Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only with respect to the extent that such records of Parent, Seller products and materials used in or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to manufactured by the Business or otherwise, the Retained Businesses or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least in the sixth anniversary event Buyer is in material breach of the Closing Date, provided, this Agreement. It is further understood that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have be under no obligation to maintain grant Buyer, its finance providers or retain their respective representatives any books and records to access if such access would, under the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not circumstances, unreasonably interfere with the business operations Seller’s or the Selling Subsidiaries’ operations, activities or employees, or if such access would, in the judgment of the Seller, violate applicable antitrust, industrial security or similar laws. In an effort to prevent any interference or disruption caused by such access, Seller may, at its sole discretion, reasonably limit the number of individuals and the number of visits to its facilities. Buyer shall coordinate all such access with a Seller employee who will be identified to Buyer promptly after the execution of this Agreement, and shall not directly or indirectly contact any other employee, or any customer or supplier, of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records Business without the prior approval of MONY the designated employee. Except to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, provided in this Agreement or disclosed in the case of either clause (i)(A) or (i)(B)Schedules hereto, in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any no information provided to such other party or obtained by Buyer pursuant to this Section 5.2(f). Any information provided 5.1 shall limit or otherwise affect the remedies available hereunder to Buyer (including, but not limited to, Buyer’s right to seek indemnification pursuant to this Section 5.2 shall be subject Article VIII), or the representations or warranties of, or the conditions to the applicable provisions of Section 5.3obligations of, the parties hereto. The Seller shall in good faith develop, including during the period prior to Closing, the transition and migration plan for the services contemplated by the Transition Services Agreement. Buyer shall in good faith cooperate therewith.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Crown Holdings Inc)
Access and Information. (a) During the period between the Contract Date Upon reasonable notice, Acquiree Bank shall afford Acquiror and the Closing Dateits representatives (including, Purchaser shall be entitledwithout limitation, through its employees directors, officers and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Acquiror and its Affiliates or affiliates and counsel, accountants and other professionals retained by Acquiror) such reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours throughout the period prior to the Effective Time of the Merger to the books, records (including, without limitation, tax returns and upon reasonable prior notice work papers of independent auditors), contracts, properties, personnel and to Sellersuch other information relating to Acquiree Bank as Acquiror may reasonably request; providedPROVIDED, howeverHOWEVER, that such actions no investigation pursuant to this SECTION 5.3 shall affect or be deemed to modify any representation or warranty made by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of Acquiree Bank in this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereofAgreement.
(b) Following From the Closing Datedate hereof until the Effective Time of the Merger, each of Parent and Seller shall, and Acquiree Bank shall cause its Affiliates to: promptly provide Acquiror with (i) allow Purchasera copy of each report, upon reasonable prior notice schedule and during normal business hoursother document filed with or received by it from any federal or state banking regulator, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct a copy of any litigation relating materials furnished to the Business or otherwiseits senior management and all materials furnished to its Board of Directors, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain a copy of each press release made available to the public and (iv) any other information concerning its business, properties and personnel as Acquiror may reasonably request. Notwithstanding the foregoing, Acquiree Bank shall not be required to provide access to or to disclose information where such records for Purchaser’s examination and copying until at least access or disclosure would violate the sixth anniversary rights of such entity's customers, jeopardize the attorney-client privilege of the Closing Date, provided, that Seller may destroy such records entity in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain possession or retain any books and records to the extent that electronic or paper copies or originals control of such books and records are delivered to Purchaser information, or contravene any of its Affiliates (including MONY) at law, rule, regulation, order, judgment, decree or binding agreement entered into prior to the Closingdate of this Agreement. Access to such employees and records shall not unreasonably interfere with The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the business operations restrictions of Seller or its Affiliatesthe previous sentence apply.
(c) Following the Closing Date, Purchaser shallAcquiror will not, and shall will cause its Affiliates representatives not to: , use any information obtained pursuant to this SECTION 5.3 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. Subject to the requirements of applicable law, Acquiror will keep confidential, and will cause its representatives to keep confidential, all information and documents obtained pursuant to this SECTION 5.3 unless such information (i) allow Sellerwas already known to Acquiror or an affiliate of Acquiror other than pursuant to a confidentiality agreement or other confidential relationship, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make becomes available to Seller Acquiror or an affiliate of Acquiror from other sources not known by such party to be bound by a confidentiality agreement or other obligation of secrecy, (iii) is disclosed with the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller approval of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser Acquiree Bank or its Affiliates(iv) is or becomes readily ascertainable from published information or trade sources.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from From and after the Contract Date or as promptly thereafter as is reasonably practicabledate hereof, include any information relating representatives of Acquiror Bank and Acquiree Bank shall meet on a regular basis to discuss and plan for the Insurance Contracts in any “conversion of Acquiree Bank's data mining” program or process that is designed or intended processing and related electronic informational systems to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered those used by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement Acquiror Bank with the party granting access and its Affiliates goal of conducting such conversion simultaneously with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions consummation of Section 5.3the Merger.
Appears in 1 contract
Access and Information. (a) During From the period between the Contract Date and date hereof until the Closing Date, Purchaser subject to any applicable Law and subject to any applicable privileges (including the attorney-client privilege), trade secrets, and contractual confidentiality obligations, upon reasonable prior notice, ▇▇▇▇▇▇ ▇▇▇▇▇▇ shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller afford Buyer and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at Representatives reasonable times access, during normal business hours hours, to the books and upon reasonable prior notice to Seller; providedrecords, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation offices and properties of the BusinessCompanies and to the extent related thereto, of the Manager and Operators, furnish to Buyer such additional financial and operational data and other information regarding the Companies as Buyer may from time to time reasonably request and make reasonably available to Buyer the employees of the Manager and Operators whose assistance and expertise is necessary to assist Buyer in connection with Buyer’s preparation to integrate the Companies into Buyer’s organization following the Closing. Notwithstanding any other provisions of this Section 5.2, Purchaser Any such access or requests shall (i) be supervised by such Persons as may be designated by the Sellers and Seller shall cooperate (ii) be conducted in implementing the provisions of this Section 5.2 such a manner so as not to prevent or interfere with Parent’s any of the businesses or operations of the Sellers, U.S. General Partner, the Companies or their respective Affiliates (including the Manager and Seller’s compliance with Operators) and shall not contravene any applicable Law. All requests for information made pursuant to this Section 5.1 hereof.
7.1(a) shall be directed to such Person or Persons as may be designated by the Sellers, and Buyer shall not directly or indirectly contact any Representative of the Sellers, U.S. General Partner, any of the Companies, or any of their respective Affiliates (bincluding the Manager and Operators) Following without the Closing Dateprior approval of such designated Person or Persons. In no event shall the auditors and independent accountants of the Sellers, each of Parent U.S. General Partner, the Companies or their respective Affiliates be obligated to make any work papers available to any Person unless and Seller until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants. If requested by the Sellers, Buyer shall, and shall cause its Buying Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONYas applicable) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting Sellers, U.S. General Partner, the Companies or their respective Affiliates with respect to any information to be provided to Buyer pursuant to this Section 7.1(a). Buyer agrees to be liable to and to indemnify, defend and hold harmless the Sellers, U.S. General Partner, the Companies and their respective Affiliates, directors, officers and employees and, to the extent related thereto, the Manager and Operators, from and against any and all Liabilities, claims and causes of action for personal injury, death or property damage occurring as a result of Buyer’s or any of its Representatives’ access to the books and records, offices and properties of U.S. General Partner, the Companies or of the Manager and Operators; provided, however, that such indemnity will not apply to the extent that any such Liabilities, claims or causes of action arise out of the gross negligence or willful misconduct of the Sellers, U.S. General Partner, the Companies or any of their respective Affiliates, directors, officers or employees, or of the Manager or Operators. Buyer further agrees to comply fully with all rules, regulations and instructions issued by the Sellers, U.S. General Partner, the Companies and their respective Affiliates or other Persons in respect of Buyer’s or its Representatives’ actions while upon, entering or leaving any properties of U.S. General Partner, the Companies or of the Manager and Operators.
(b) From and after the Closing, in connection with any reasonable business purpose, including (i) in response to the request or at the direction of a Government Entity, (ii) the preparation of Tax Returns or other documents related to Tax matters and (iii) the determination of any matter relating to the rights or obligations of the Sellers, U.S. General Partner and their respective Affiliates (including the Manager and Operators) under this Agreement or any other Transaction Document (including matters contemplated by Section 2.4), subject to any applicable Law and any applicable privileges (including the attorney-client privilege) and contractual confidentiality obligations, upon reasonable prior notice, Buyer shall (A) afford the Sellers and their respective Representatives reasonable access, during normal business hours, to the books, data, files, information and records of Buyer and its Affiliates in respect of U.S. General Partner and the Companies (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), (B) furnish to the Sellers such additional financial and other information regarding U.S. General Partner and the Companies as the Sellers may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (C) make available to the Sellers the employees of Buyer and its Affiliates (or, if applicable, any replacement manager or operator) whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Sellers, their respective Affiliates or their respective Representatives in connection with the Sellers’ or such Affiliates’ inquiries for any of the purposes referred to in this Section 7.1(b); provided, however, that such access or request shall not unreasonably interfere with the business or operations of Buyer or any of its Affiliates. In no event shall the auditors and independent accountants of Buyer or its Affiliates be obligated to make any work papers available to any Person unless and until such Person has signed a customary confidentiality and hold harmless agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or independent accountants. If so reasonably requested by Buyer, the Sellers shall, and shall cause their respective Affiliates (as applicable) to, enter into a customary joint defense agreement with any one or more of Buyer and its Affiliates with respect to any information to be provided to such other party the Sellers or their respective Affiliates pursuant to this Section 5.2(f7.1(b). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Securities Purchase Agreement (Spectra Energy Corp.)
Access and Information. (a) During Subject to the restrictions set forth in Paragraph 14.6 and provided that Buyer has complied with each and every provision thereof, Seller shall afford Buyer, any prospective lender of Buyer, and the counsel, accountants and other representatives of Buyer and any such lender, reasonable access, throughout the period between from the Contract Date date hereof to the Closing, to the Transferred Assets and the employees, personnel and medical staff of the Hospital Businesses and all the properties, books, contracts, commitments, cost reports and records of the Hospital Businesses (regardless of where such information may be located), including, without limitation, the right to conduct an Environmental Survey (as such term is defined in Paragraph 8.2). Until the first anniversary of the Closing Date, Purchaser under no circumstances shall be entitled, through its employees and representatives and at its own expense, to make such examination Buyer directly or indirectly solicit the employment of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of any employees of any of Seller and its Affiliates or access pursuant to based at any of the provisions Hospitals, except as Hired Employees pursuant to the terms hereof or except as may be permitted with the prior written consent of this Section 5.2 a responsible officer of Seller. Such access shall be conducted or occur at reasonable times afforded after no less than 24 hours prior notice, during normal business hours and upon reasonable prior notice only in such manner so as not to Sellerdisturb patient care or to interfere with the normal operations of the Hospital Businesses; provided, however, that such actions by Purchaser notwithstanding the foregoing and subject to the provisions concerning nondisclosure as set forth in Paragraph 14.6, without first obtaining the consent of Dona▇▇ ▇. ▇▇▇▇▇▇, ▇▇ither Buyer, any prospective lender of Buyer, nor their respective counsel, accountants and other representative, shall not unreasonably interfere with tour or visit the normal operation Hospital Businesses or contact any of the Business. Notwithstanding employees, personnel or medical staff of the Hospital Businesses and any other provisions such tour, visit or contact during the Inspection Period shall take place only during a period of this Section 5.2time, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s exceed ten days, to be mutually agreed upon by Buyer and Seller’s compliance with Section 5.1 hereof.
(b) Following . Seller also shall furnish to Buyer all such information concerning the Closing Date, each affairs of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including Hospital Businesses as is in the possession or control of Seller and as Buyer may reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)request, including the preparation or examination right to have copies and/or extracts of Purchaser’s Tax Returnspertinent records, regulatory filings documents and financial statementscontracts. In addition, but only Seller shall provide such written consents and authorizations as may be necessary for Buyer to have access to materials on file with governmental agencies. Nothing in this Agreement to the extent contrary shall in any manner restrict the ability of Buyer to discuss the business and affairs of the Hospital Businesses with any governmental agency having jurisdiction over the Hospital and/or this transaction or the fiscal intermediaries administering the Hospitals' Payor programs. Seller's covenants under this Paragraph 6.2 are made with the understanding that Buyer and any other Person provided with access to information under this Paragraph 6.2 shall use all such records of Parentinformation in compliance with all Laws. Neither Buyer nor any other Person shall have access to employee records, Seller Patient Records or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals the disclosure of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested prohibited by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Lawaccreditation standards, or to dealings with rule or agreement (express or implied) of confidentiality or violate or breach any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3privilege.
Appears in 1 contract
Sources: Stockholders Agreement (New American Healthcare Corp)
Access and Information. (a) During Between the period between the Contract Date date of this Agreement and the Closing DateEffective Time, the Company will give, and shall direct its employees, accountants, legal counsel, financial advisors and other representatives to give, Purchaser shall be entitledand its respective authorized representatives (including, through without limitation, its financial advisors, accountants and legal counsel), at all reasonable times, full access to all offices and other facilities, the Company’s employees and representatives to the extent permitted by the terms thereof, all contracts, agreements, commitments, books and at records of or pertaining to the Company and its own expenseSubsidiaries, will permit the foregoing to make such examination inspections as they may require and (i) will cause its officers promptly to furnish Purchaser with such financial and operating data and other information with respect to the business and properties of the Books Company and Records its Subsidiaries as Purchaser may from time to time reasonably request, and (ii) will make available a copy of each material report, schedule and other document filed or received by the Company pursuant to the requirements of applicable securities Laws or the NASD. Any investigationNotwithstanding the foregoing, examination or interview by Purchaser of employees of neither party nor any of Seller and its Affiliates Subsidiaries shall be required to provide access to or to disclose information where such access pursuant to any or disclosure would materially breach a contract or other obligation, jeopardize the attorney-client privilege of the provisions Person in possession or control of such information or contravene any Law or binding agreement entered into prior to the date of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; providedAgreement. If possible, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation parties will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the Business. Notwithstanding any other provisions preceding sentence apply, including adopting additional specific procedures to protect the confidentiality of this Section 5.2, Purchaser certain sensitive material and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s ensure compliance with Section 5.1 hereofantitrust Laws, and, if necessary, restricting review of certain sensitive material to the receiving party’s personnel holding applicable security clearances, or if applicable financial advisors, lenders or outside legal counsel.
(b) Following the Closing Date, each of Parent and Seller The Company shall, and shall cause its Affiliates Subsidiaries to: , reasonably cooperate with the Purchaser in consummating the financing contemplated by the Commitment Letters and any syndication efforts related thereto, including, to the extent reasonable, (i) allow Purchaser, upon reasonable prior notice making senior management available for meetings and during normal business hours, through its arranging for employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) advisors of the Code), including Company and its Subsidiaries to provide reasonable assistance with the preparation or examination of Purchaser’s Tax Returns, regulatory filings financing documentation and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow furnishing the Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books financing sources with financial and records to other pertinent information regarding the extent that electronic or paper copies or originals Company and its Subsidiaries as may be reasonably requested by the Purchaser. Table of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.Contents
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, The Chief Financial Officer of the books and records Company shall deliver to Purchaser immediately before the close of MONY to business on the extent relating to periods day which is six (6) business days prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary then-scheduled expiration date of the Closing Date, provided, that Purchaser may destroy such books Offer and records in its discretion following immediately before the third anniversary close of business on the then-scheduled expiration date of the Closing Date after giving reasonable prior written notice to Seller Offer, a certificate executed by such officer which sets forth the anticipated number of its intent to destroy such documents. Access to such employees issued and books and records shall not unreasonably interfere with outstanding Shares as of the business operations date of Purchaser or its Affiliatesthe expiration of the Offer.
(d) Following Without limiting any other provision of this Agreement, from time to time during the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor Offer upon the request of any other Person to change Purchaser, immediately before the servicer or broker close of record with respect business on the day which is six (6) business days prior to the Businessthen scheduled expiration date of the Offer and immediately before the close of business on the expiration date of the Offer, unless the Company shall inform Purchaser orally and in writing as to the then-current status of satisfaction of the conditions to the Offer described in paragraphs (c), (d)(ii), (e) (f) and (j) on Annex A. The President of the Company shall deliver to Purchaser promptly following the close of business on the then-scheduled expiration date of the Offer a certificate executed by such officer to the effect that the conditions to the Offer specified in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyimmediately preceding sentence have been satisfied.
(e) Except as set forth in Prior to the last sentence execution and delivery of this Section 5.2(e) or in Section 5.14(f)Agreement, between the Contract Date and the Closing Date, each Company shall have delivered to Purchaser a copy of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders duly adopted resolutions of the Insurance Contracts only for Board approving the purpose execution, delivery and performance of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance other agreements contemplated hereby and, in each case, the transactions contemplated thereby, certified by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing Secretary of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance ContractCompany.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Access and Information. (a) During Prior to the period between Closing, the Contract Date Company shall permit, shall cause the Managed Companies to permit, and shall exercise the voting, governance and contractual powers available to it to cause the Non- Managed Companies to permit, Purchaser, its Affiliates and their respective employees, counsel, accountants and other representatives after the date of execution of this Agreement to (i) have reasonable access, during regular business hours, to the assets, employees, properties, Books and Records, businesses and operations relating to the Company and the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records Covered Companies as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant (ii) to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine inspect and make copies of any records retained Books and Records and all other documents and information, from time to time, reasonably requested by Seller or any of Purchaser, its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code)and their respective employees, counsel, accountants and other representatives, including the preparation or examination of Purchaser’s Tax Returnsfinancial, regulatory filings tax and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory operating documents and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process information and (iii) maintain such records for Purchaser’s examination and copying until at least without limiting the sixth anniversary of the Closing Dateforegoing, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere meet with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective designated employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding Notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of its Affiliates or representatives, shall conduct any environmental site assessment, compliance evaluation or investigation with respect to the Company or any of the Managed Companies without prior consultation with the Company or such Managed Company and, with respect to any other Covered Company, without prior approval from such Covered Company, and, in each case, without ongoing consultation with the Company with respect to any such activity. The Company shall, shall cause the Managed Companies to, and shall exercise the voting, governance and contractual powers available to it to cause the Non- Managed Companies to, provide Purchaser, its Affiliates and their respective employees, counsel, accountants and other representatives access to all real property as is reasonably necessary to conduct any assessments, evaluations or investigation as Purchaser deems necessary or advisable, including a Phase I environmental site assessment, though under no circumstances shall any subsurface investigation or testing of any environmental media be conducted. The Company shall, shall cause the Managed Companies to, and shall exercise the voting, governance and contractual powers available to it to cause the Non- Managed Companies to, furnish to Purchaser promptly upon its reasonable request (a) all additional documents and information with respect to the affairs of the Company and the Covered Companies and (b) access, as Purchaser, its Affiliates or their respective employees, accountants, counsel and other representatives may from time to time reasonably request, to the Company's, and the Covered Companies' and their respective Affiliates' employees, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Businessaccountants, counsel and other representatives, and any holder thereofshall instruct such employees, in any accountants, counsel and other representatives to cooperate with Purchaser, its employees, counsel, accountants and other representatives, and to provide such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractdocuments and information as Purchaser, its Affiliates and their respective employees, counsel, accountants and other representatives may reasonably request.
(fb) Anything to the contrary All information provided or obtained under Section 5.3(a) shall be held by Purchaser in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is accordance with and subject to the terms of a non-disclosure agreement with a third partythe Confidentiality Agreement, (ii) and Purchaser hereby agrees that may constitute privileged attorney-client communications or attorney work product the provisions of the Confidentiality Agreement will apply to any properties, Books and Records, data, documents and other information relating to the Company and the transfer Covered Companies that is provided to Purchaser or its Affiliates or any of whichtheir employees, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege accountants or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party representatives pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be Agreement, in each case subject to the applicable provisions of Section 5.35.12.
Appears in 1 contract
Access and Information. (a) During From the period between date hereof until the Contract Date and the Closing DateClosing, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant subject to any of the provisions of this Section 5.2 shall be conducted or occur at applicable Law, Parent, in its reasonable times during normal business hours discretion and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate not disruptive to MONY or the Business; (ii) allow Purchaser to interview employees of Parentthe Target Company, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including Target Business and the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) senior management of the Code)Target Company, regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide afford Purchaser and its Affiliates, subject to any contractual restrictions, reasonable access during normal business hours upon reasonable advance notice to the books and records of the Target Business and senior management of the Target Company and its agents and auditors to the extent reasonably required by Purchaser to ensure an orderly and efficient transition of the Target Business to Purchaser, to prepare for the Closing and to facilitate the satisfaction of the conditions to the Closing under Article VI; provided, however, that in no event shall Purchaser have access to any information (i) that relates to any portion of the business of Parent or its Affiliates that is not being transferred pursuant to this Agreement (including any consolidated, combined, affiliated or unitary Tax Return which includes Parent or any of its Affiliates or any tax-related work papers, except, in each case, for materials or portions thereof that relate solely to the Target Company) or (ii) in Parent’s reasonable determination, the disclosure of which could be reasonably expected to affect any legal privilege or result in (A) the disclosure of any trade secrets, (B) the violation of any obligations of Parent or Parent’s Affiliates with respect to confidentiality if Parent or Parent’s Affiliates shall have used commercially reasonable efforts to obtain the consent of such third party to such inspection or disclosure or (C) the violation of applicable Law. In the event that disclosing information would violate any obligation of Parent or any of its Affiliates with respect to confidentiality, the Parties shall reasonably cooperate so the information might be made available in a redacted format, or, if such redaction would result in pertinent information being omitted, Parent shall make such information available if Purchaser delivers confidentiality, and if reasonably required, indemnity undertakings reasonably satisfactory to Parent. Notwithstanding anything to the Affiliated Distributors that are parties contrary herein, the auditors and independent accountants of Parent or any of its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such auditors or accountants. Notwithstanding anything to the Distribution Agreementscontrary herein, neither Parent nor any of its Affiliates shall be required to disclose to Purchaser or any Representative of Purchaser any consolidated, combined, affiliated or unitary tax return which includes Parent or any of its Affiliates or any tax-related work papers, except, in accordance each case, for materials or portions thereof that relate solely to the Target Company.
(b) Following the Closing, to the extent permitted by applicable Law, Purchaser agrees to provide (or cause its Affiliates to provide) Parent with all necessary access to all books and records and other documents (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) that it acquires pursuant to this Agreement and to its assets, properties and Representatives, in each case, to the extent that such access is reasonably required by Parent, its Affiliates or the Parent Shareholders, (i) to prepare financial statements, Tax filings or regulatory filings of Parent in respect of periods ending on or prior to the Closing Date, (ii) to comply with the terms of the Distribution Agreementsany Transaction Document, as any applicable Law or request of any Government Authority, (iii) to defend or prosecute any judicial, arbitral or regulatory proceeding to which Parent or any of its Affiliates is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect a party relating to the Insurance Contractsbusiness and affairs of the Target Company prior to the Closing, and none or (iv) in connection with any claim for indemnity made under or pursuant to this Agreement, in each case, subject in the case of any Confidential Information of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result Parent and its Representatives agreeing to maintain the confidentiality of such information (except in the replacement case of the Distributors as servicers information required to prepare Tax filings or brokers regulatory filings of record for the Insurance Contracts. Purchaser shall promptly make any changes Parent in the servicer respect of periods ending on or broker of record with respect prior to the Business requested by Closing Date); provided, however, that in no event shall Parent have access to any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or information the terms disclosure of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Businesswhich, unless in the opinion based on advice of Purchaser’s counsel such refusal to honor such request counsel, or in Purchaser’s reasonable determination, would violate Applicable applicable Law or could destroy any legal privilege. In the terms event that disclosing information would violate any obligation of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Lawrespect to confidentiality, or to dealings with any Governmental Authoritythe Parties shall reasonably cooperate so the information might be made available in a redacted format, relating to Purchaser’s ownershipor, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubtif such redaction would result in pertinent information being omitted, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokersif Parent delivers confidentiality, and if reasonably required, indemnity, undertakings reasonably satisfactory to Purchaser. Notwithstanding anything to the contrary herein, the auditors and independent accountants of Purchaser or any of its Affiliates shall not be obligated to make any work papers available to any Person unless and until such Person has entered into reasonable and customary third-party access and confidentiality agreements in form and substance acceptable to such auditors or accountants. Purchaser agrees to (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall to cause its Affiliates to) retain and preserve all books and records and all other documents that it and its Affiliates acquire pursuant to this Agreement for at least six (6) years following the Closing Date (or longer if required by applicable Law, use information relating including, in the case of books and records and other documents that relate to Tax matters, until the statutory period of limitations for assessing Taxes with respect to the Business only for the purpose of complying, or causing its applicable Affiliates Tax matters to comply, with their respective obligations under this Agreement which such books and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Businessrecords and other documents relate expires). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any that after such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document six-year (or portions thereofother) period, Purchaser shall use its reasonable best efforts to provide Parent with at least ninety (90) days’ written notice prior to destroying or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver disposing of any such privilege or (iii) if books, records and other documents, at which time and at the provision option and expense of access to Parent, Purchaser shall deliver such document (or portion thereof) or books, data, files, information, as determined by such party’s counselrecords, would reasonably be expected documents, correspondence and other materials to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3Parent.
Appears in 1 contract
Access and Information. (a) During From the period between date hereof to the Contract Date Effective Time, the Company shall, and shall cause the Closing DateCompany Subsidiaries to, Purchaser shall be entitled, through its employees and representatives and at its own expense, afford to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller Parent and its Affiliates or prospective financing sources and its and their respective officers, employees, accountants, consultants, legal counsel and other representatives, upon reasonable prior notice, reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours to (i) the management and key employees of the Company and Company Subsidiaries (provided that the Company shall be entitled to have one or more designees of the Company be present at or participate in any meeting or communication with such person) and (ii) all businesses, properties, facilities, contracts and books and records of the Company and the Company Subsidiaries and all information with respect to the foregoing as Parent may reasonably request; provided that such examination and investigation will be conducted at times and in a manner that does not unreasonably interfere with the operation of the Company’s or the Company Subsidiaries’ respective businesses. Notwithstanding anything else to the contrary contained in this Agreement no investigation made by Parent, Merger Sub or any of their Affiliates, agents, advisors or other representatives pursuant to this Section 7.1 or otherwise shall affect or be deemed to modify any representation, warranty, covenant or indemnity made by the Company or any Company Holder.
(b) Following the Effective Time, for so long as such information is retained by Parent or the Surviving Corporation (which shall be for a period of at least five (5) years), Parent shall permit the Stockholder Representative and its Affiliates and representatives (collectively, the “ABRY Parties”) to have reasonable access and duplicating rights during normal business hours, upon reasonable prior notice to SellerParent, to the books, records and personnel relating to the business of the Company, to the extent that such access may be reasonably required in connection with (i) the preparation of any Company Holder’s Tax returns or with any audit thereof, (ii) any suit, claim, action, proceeding or investigation relating to the operation of the business of the Company and the Company Subsidiaries prior to the Effective Time, (iii) any regulatory filing or matter; or (iv) any matter relating to this Agreement or the transactions contemplated hereby; provided that any such ABRY Parties shall reimburse Parent or the Surviving Corporation for all reasonable out-of-pocket costs and expenses incurred by Parent or the Surviving Corporation in connection with any such request. Parent and the Surviving Corporation, as applicable, shall attempt in good faith to maintain such books and records in reasonably accessible format and at reasonably accessible locations.
(c) Following the Effective Time, Parent shall, and shall instruct its and the Surviving Corporation’s employees to, at any Company Holder’s reasonable request, cooperate with such Company Holder as may be reasonably required in connection with the investigation and defense of any suit, claim, action, proceeding or investigation relating to the business of the Company or any of the Company Subsidiaries that is brought against such Company Holder or any of its Affiliates at any time after the Effective Time by any Person other than Parent, the Surviving Corporation or any of their Affiliates or successors; provided, however, that such actions by Purchaser Company Holder shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of reimburse Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates Surviving Corporation promptly for any all reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory out-of-pocket costs and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, expenses incurred by Parent or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), Surviving Corporation in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain any such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliatesrequest.
(d) Following As soon as practicable after the Closing Datedate of this Agreement, Purchaser shall, and the Company shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none job title of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyeach individual listed on Schedule 3.15(a).
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Merger Agreement (Harris Corp /De/)
Access and Information. (a) During From the period between the Contract Date and date hereof until the Closing Date, Purchaser subject to any applicable Law and subject to any applicable privileges (including the attorney-client privilege), trade secrets, and contractual confidentiality obligations, upon reasonable prior notice, Seller shall afford Buyer and its Representatives reasonable access, during normal business hours, to the books and records, offices and properties of the Companies, furnish to Buyer such additional financial and operational data and other information regarding the Companies as Buyer may from time to time reasonably request and make reasonably available to Buyer the employees of Seller or its Affiliates whose assistance and expertise is necessary to assist Buyer in connection with Buyer’s preparation to integrate the Companies into Buyer’s organization following the Closing. Any such access or requests shall (i) be supervised by such Persons as may be designated by Seller and (ii) be conducted in such a manner so as not to interfere with any of the businesses or operations of Seller, SE Capital Funding, the Companies or their respective Affiliates and shall not contravene any applicable Law. All requests for information made pursuant to this Section 7.1(a) shall be entitleddirected to such Person or Persons as may be designated by Seller, through its employees and representatives and at its own expenseBuyer shall not directly or indirectly contact any Representative of Seller, to make such examination SE Capital Funding, any of the Books Companies, or any of their respective Affiliates without the prior approval of such designated Person or Persons. Buyer further agrees to comply fully with all rules, regulations and Records as Purchaser may reasonably request. Any investigationinstructions issued by Seller, examination SE Capital Funding, the Companies and their respective Affiliates or interview by Purchaser other Persons in respect of employees Buyer’s or its Representatives’ actions while upon, entering or leaving any properties of Seller, SE Capital Funding or the Companies.
(b) From and after the Closing, in connection with any reasonable business purpose, including (i) in response to the request or at the direction of a Government Entity, (ii) the preparation of Tax Returns or other documents related to Tax matters and (iii) the determination of any matter relating to the rights or obligations of Seller, SE Capital Funding and their respective Affiliates under this Agreement or any other Transaction Document (including matters contemplated by Section 2.4), subject to any applicable Law and any applicable privileges (including the attorney-client privilege) and contractual confidentiality obligations, upon reasonable prior notice, Buyer shall (A) afford Seller and its respective Representatives reasonable access, during normal business hours, to the books, data, files, information and records of Buyer and its Affiliates in respect of the Companies (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters), (B) furnish to Seller such additional financial and other information regarding the Companies as Seller may from time to time reasonably request (including, for the avoidance of doubt, Tax Returns and other information and documents relating to Tax matters) and (C) make available to Seller the employees of Buyer and its Affiliates (or, if applicable, any replacement manager or operator) whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist Seller, its respective Affiliates or access pursuant to its respective Representatives in connection with Seller’s or such Affiliates’ or Representatives’ inquiries for any of the provisions of purposes referred to in this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller7.1(b); provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent access or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records request shall not unreasonably interfere with the business or operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser Buyer or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a partyAffiliates.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Securities Purchase Agreement (Spectra Energy Partners, LP)
Access and Information. (a) During From and after the period between the Contract Date date of this Agreement and until the Closing Date, Purchaser each of Seller Parent and Seller shall be entitledgive, through its employees and representatives and at its own expensecause the Transferor Entities to give, to make such examination Buyer and Buyer Parent, and their respective officers, employees, accountants, counsel and other representatives (collectively, “Representatives”), reasonable access upon reasonable advance written notice during the Transferor Entities’ normal business hours to all of the Books Transferor Entities’ properties, books, contracts, commitments, reports of examination and Records records relating to the Business, the Employees, the Transferred Assets and the Assumed Liabilities as Purchaser Buyer may from time to time reasonably requestrequest as is necessary to consummate the transactions contemplated by this Agreement and the Related Agreements. Any investigation, examination or interview by Purchaser of employees of any Each of Seller Parent and its Affiliates Seller shall, or access pursuant cause the Transferor Entities to, take commercially reasonable efforts to assist Buyer and Buyer Parent, and their respective Representatives to be reasonably available to any of them for such purposes upon reasonable advance notice and as reasonably requested by Buyer from time to time. No information or knowledge obtained by Buyer in any investigation pursuant to this Section 5.3(a) shall affect or be Table of Contents deemed to modify any representation or warranty of Seller Parent or Seller set forth in this Agreement or otherwise impair the rights and remedies available to Buyer hereunder. Notwithstanding the foregoing, nothing herein will require the Seller, Seller Parent or any Transferor Entity to disclose any information to Buyer, Buyer Parent, or any of their respective Representatives if such disclosure would, in the reasonable judgment of Seller or Seller Parent: (a) cause significant competitive harm to the Business if the transactions herein are not consummated; (b) unreasonably interfere with the Business and operations of the Transferor Entities; (c) violate applicable law, rules or regulations or the provisions of any Contract to which the Seller, Seller Parent or any Transferor Entity is party or by which its assets are bound; or (d) jeopardize any attorney-client or other legal privilege. Buyer and Buyer Parent agree that they will not, and will cause their respective Representatives not to, use any information obtained pursuant to this Section 5.2 5.3(a) for any competitive or other purpose unrelated to the consummation of the transactions contemplated by this Agreement and the Related Agreements. Without limiting the foregoing, Buyer, Buyer Parent and their respective Representatives shall maintain all information received pursuant to this Section 5.3(a) in accordance with the terms of the Confidentiality Agreements, and Buyer, Buyer Parent and their respective Representatives shall not be permitted to unreasonably interfere with the Transferor Entities or the conduct of the Business.
(b) From and after the Closing Date, Seller Parent and Seller, on the one hand, and Buyer, on the other hand, shall provide, and shall cause their respective Affiliates to provide, to each other and to their respective Representatives, upon request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege or legal or contractual Third Party confidentiality obligation; provided, however, that if access is limited or restricted pursuant to this parenthetical, Seller Parent and Seller, on the one hand, and Buyer, on the other hand, shall use commercially reasonable efforts to make alternative accommodations to afford access in a manner that does not jeopardize any attorney-client privilege or legal or contractual Third Party confidentiality obligation), reasonable access for inspection and copying of all Information, Permits, Contracts and any other information existing as of the Closing Date and relating to the Business, the Transferred Assets, the Assumed Liabilities or the Employees and shall use commercially reasonable efforts make their respective personnel reasonably available during normal business hours for interviews, depositions and testimony in any legal matter concerning transactions contemplated by this Agreement, the operations or activities relating to the Business, the Transferred Assets, the Assumed Liabilities or the Employees solely to the extent reasonably necessary to enable the Party requesting such assistance to: (i) comply with any reporting, filing or other requirements imposed by any Governmental Authority; (ii) assert or defend any claims or allegations in any litigation or arbitration or in any administrative or legal proceeding other than claims or allegations that one Party to this Agreement has asserted against the other; or (iii) subject to clause (ii) above, perform its obligations under this Agreement. The Party requesting such information or assistance shall reimburse the other Party for all reasonable and necessary out-of-pocket costs and expenses, if any, incurred by such Party in providing such information and in rendering such assistance. The access to files, books and records contemplated by this Section 5.3(b) shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior notice to Seller; provided, however, that such actions by Purchaser shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior written notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to such reasonable limitations as the applicable provisions Party having custody or control thereof may impose to preserve the confidentiality of Section 5.3information contained therein.
Appears in 1 contract
Sources: Stock Purchase Agreement (WPP PLC)
Access and Information. (a) During From and after the period between the Contract Date date of this Agreement and until the Closing Date, Purchaser shall be entitled, through its employees and representatives and at its own expense, subject in all respects to make such examination their compliance with the terms of the Books and Records as Purchaser may reasonably request. Any investigationExisting Non-Disclosure Agreement, examination or interview by Purchaser of employees of any of Seller shall give to Buyer and its Affiliates or Affiliates, and their respective officers, employees, accountants, counsel and other representatives, reasonable access pursuant during Seller’s normal operating hours to any the Property (and shall coordinate with FRMC in order to ensure FRMC likewise provides Buyer with access to the same), books, contracts, commitments, reports of examination and records relating exclusively to the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours Foundry Operation, the Foundry Operation Employees, the Purchased Assets, the Real Property and upon reasonable prior notice to Sellerthe Assumed Liabilities; provided, however, in each case that, if requested by Seller, Buyer and its Affiliates, and their respective officers, employees, accountants, counsel and other representatives shall be accompanied at all times by a person designated by Seller, including without limitation Seller’s legal counsel. Seller shall reasonably assist Buyer and its Affiliates, and their respective officers, employees, accountants, counsel and other representatives, in making such investigation and shall cause its counsel, accountants, engineers, consultants and other non-employee representatives to be reasonably available to any of them for such purposes, provided that such actions by Purchaser Buyer shall not unreasonably interfere with the normal operation of the Businessreimburse Seller for any out-of-pocket costs arising therefrom. Notwithstanding any other provisions Subsequent to mutual execution of this Section 5.2Agreement, Purchaser Buyer and Seller shall cooperate jointly work together in implementing good faith to prepare and/or revise, prior to the provisions Closing, any of the exhibits and schedules attached to this Section 5.2 so as Agreement to the mutual satisfaction of both, it being acknowledged and agreed that such documents may not be in final form. Seller shall appoint a financial representative, and make its best efforts, to prevent or interfere assist Buyer with ParentBuyer’s reasonable requests for additional financial information concerning the Foundry Operation during the period beginning on the Effective Date and Seller’s compliance with Section 5.1 hereof.
(b) Following ending on the date which is 45 days after the Closing Date, each all as necessary to complete an audit of Parent and Seller shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, Seller’s financials concerning the right, at PurchaserFoundry Operation in order to complete Buyer’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose required SEC filing (including as pursuant to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ 210.3-05 - Financial statements of businesses acquired or to be acquired) which is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of due no later than 70 calendar days after the Closing Date. Buyer agrees to engage an accounting consultant at its sole cost to determine if the Buyer can be reasonably successful in seeking a waiver from the SEC for audited historical financial statements for the Seller, providedalthough Buyer and Seller acknowledge and agree that there shall be no guarantee that the SEC will approve the waiver, that Seller may destroy such records if submitted in its Buyer’s reasonable discretion following based on the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals advice of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliatesaccounting consultants.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Asset Purchase Agreement
Access and Information. (a) During the period between the Contract Date FP Holding and the Closing Dateeach FP Subsidiary shall afford to WFBI, Purchaser shall be entitledand to WFBI’s accountants, through its employees counsel, financial advisors and representatives and at its own expenseother representatives, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or reasonable access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at upon reasonable times notice during normal business hours of FP Holding and upon reasonable prior notice each FP Subsidiary, respectively, during the Pre-Closing Period, to Seller; providedall of its properties, howeverbooks, that contracts, commitments and records and, during such actions by Purchaser a period, shall not unreasonably interfere with the normal operation of the Business. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not furnish promptly to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates toWFBI: (i) allow Purchasera copy of each report, upon reasonable prior notice schedule and other document filed or received by it during normal business hours, through its employees such period with or from (w) the Financial Industry Regulatory Authority; (x) the SCC and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose VBFI; (including as is reasonably necessary for y) the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) Maryland office of the Code), including the preparation or examination Commissioner of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the BusinessFinancial Regulation; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B)z) any other federal, in connection with the preparation state or examination of Tax Returns, local governmental or regulatory and statutory filings and financial statementsagency or department; and (ii) maintain all other information concerning its business, assets, properties and personnel as WFBI may reasonably request. WFBI and its accountants, counsel, financial advisors and other representatives will request permission for all such books access reasonably in advance, and records all such access will be conducted in a manner designed to minimize disruption to the normal business operations and employee or customer relations of FP Holding and each FP Subsidiary. WFBI shall cause all information obtained by it or its representatives from FP Holding and any FP Subsidiary pursuant to this Agreement or in connection with the negotiation thereof, including, without limitation, the schedules hereto, to be treated as confidential and shall not use, nor knowingly permit others to use, any such information for Seller’s examination any purpose other than in connection with the transactions contemplated hereby, unless such information becomes generally available to the public or is required to be disclosed pursuant to the order of a court of competent jurisdiction or otherwise in accordance with applicable law, and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary event of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary termination of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records this Agreement shall not unreasonably interfere with the business operations of Purchaser promptly return all documents (including copies thereof) obtained hereunder from FP Holding or its Affiliates.
(d) Following the Closing Date, Purchaser shallany FP Subsidiary, and shall cause its Affiliates to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms destroy all copies of any Contract to which Purchaser analyses, compilations, notes, studies or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, documents prepared from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contractmaterial for their use.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any information provided pursuant to this Section 5.2 shall be subject to the applicable provisions of Section 5.3.
Appears in 1 contract
Sources: Merger Agreement (WashingtonFirst Bankshares, Inc.)
Access and Information. (a) During The Selling Parties shall afford to the period between Purchaser and to the Contract Date Purchaser’s accountants, counsel and the Closing Dateother representatives reasonable access, Purchaser shall be entitled, through its employees and representatives and at its own expense, to make such examination of the Books and Records as Purchaser may reasonably request. Any investigation, examination or interview by Purchaser of employees of any of Seller and its Affiliates or access pursuant to any of the provisions of this Section 5.2 shall be conducted or occur at reasonable times during normal business hours and upon reasonable prior advance notice to Sellerthe Owners, throughout the period prior to the Closing to all of the Company’s properties, books, contracts, commitments, records and personnel, and, during such period, the Company shall furnish promptly to the Purchaser (i) the Company’s internal monthly financial statements when and as available and (ii) all other information concerning its business, properties, and personnel as the Purchaser or its representatives may reasonably request. Notwithstanding anything to the contrary in this Agreement, neither the Owners nor the Company shall be required to disclose any information to the Purchaser if such disclosure would, in the Owners’ reasonable discretion: (x) cause significant competitive harm to the Owners, the Company and their respective businesses if the transactions contemplated by this Agreement are not consummated; (y) jeopardize any attorney-client or other privilege; or (z) contravene any applicable law, fiduciary duty or binding confidentiality or non-disclosure agreement entered into prior to the date of this Agreement; provided, however, that the omission of such actions by disclosure in the Company Disclosure Document as an exception to any representation or warranty contained herein shall be so noted in the Company Disclosure Document. Prior to the Closing, without the prior written consent of the Owners, the Purchaser shall not unreasonably interfere with contact any suppliers to, or customers of, the normal operation Company and the Purchaser shall have no right to perform invasive or subsurface investigations of the BusinessCompany’s real property; provided, however, that the Owners do hereby consent to the contact and investigations described in Exhibit J hereto. Notwithstanding any other provisions of this Section 5.2, Purchaser and Seller shall cooperate in implementing the provisions of this Section 5.2 so as not to prevent or interfere with Parent’s and Seller’s compliance with Section 5.1 hereof.
(b) Following the Closing Date, each of Parent and Seller The Owners shall, and shall cause its Affiliates to: (i) allow Purchaser, upon reasonable prior notice and during normal business hours, through its employees and representatives, the right, at Purchaser’s expense, to examine and make copies of any records retained by Seller or any of its Affiliates for any reasonable business purpose (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), including the preparation or examination of Purchaser’s Tax Returns, regulatory filings and financial statements, but only to the extent that such records of Parent, Seller or any of their Affiliates relate to MONY or the Business; (ii) allow Purchaser to interview employees of Parent, Seller or any of their respective Affiliates for any reasonable purpose relating to the Business, including the preparation or examination of Tax Returns (including as is reasonably necessary for the purpose of determining whether or not an Insurance Contract has met the diversification requirements of Section 817(h) of the Code), regulatory and statutory filings and financial statements and the conduct of any litigation relating to the Business or otherwise, or the conduct of any regulatory, customer or other dispute resolution process and (iii) maintain such records for Purchaser’s examination and copying until at least the sixth anniversary of the Closing Date, provided, that Seller may destroy such records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Purchaser of its intent to destroy such documents, provided, further, that Seller and its Affiliates shall have no obligation to maintain or retain any books and records to the extent that electronic or paper copies or originals of such books and records are delivered to Purchaser or any of its Affiliates (including MONY) at or prior to the Closing. Access to such employees and records shall not unreasonably interfere with the business operations of Seller or its Affiliates.
(c) Following the Closing Date, Purchaser shall, and shall cause its Affiliates to: (i) allow Seller, upon reasonable prior notice and during normal business hours, through their respective employees and representatives, the right to (A) examine and make copies, at Seller’s expense, of the books and records of MONY to the extent relating to periods prior to the Closing and (B) interview Purchaser’s and its Affiliates’ employees, in the case of either clause (i)(A) or (i)(B), in connection with the preparation or examination of Tax Returns, regulatory and statutory filings and financial statements; and (ii) maintain such books and records for Seller’s examination and copying in the circumstances contemplated by clause (i) above. Purchaser shall maintain and make available to Seller the books and records of MONY to the extent relating to periods prior to the Closing until at least the sixth anniversary of the Closing Date, provided, that Purchaser may destroy such books and records in its discretion following the third anniversary of the Closing Date after giving reasonable prior written notice to Seller of its intent to destroy such documents. Access to such employees and books and records shall not unreasonably interfere with the business operations of Purchaser or its Affiliates.
(d) Following the Closing Date, Purchaser shall, and shall cause its Affiliates representatives to, provide such information to the Affiliated Distributors that are parties to the Distribution Agreements, in accordance with abide by the terms of the Distribution Agreements, as is necessary to enable such Affiliated Distributors to provide the Independent Distributors with the information necessary to service customers with respect to the Insurance Contracts, and none of Purchaser or any of its Affiliates shall, whether directly or indirectly, support or sponsor a program that is intended or would reasonably be expected to result in the replacement of the Distributors as servicers or brokers of record for the Insurance Contracts. Purchaser shall promptly make any changes in the servicer or broker of record with respect to the Business requested by any Affiliated Distributor that is a party to a Distribution Agreement; provided that such requested change would not violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party. Purchaser shall not honor the request of any other Person to change the servicer or broker of record with respect to the Business, unless in the opinion of Purchaser’s counsel such refusal to honor such request would violate Applicable Law or the terms of any Contract to which Purchaser or any of its Affiliates (including MONY) is a party.
(e) Except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), between the Contract Date and the Closing Date, each of Parent and Seller shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purpose of servicing customers with respect to the Insurance Contracts and operating and administering the Business in the ordinary course and in accordance with past practices (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the ownership, operation or administration of the Business). Following the Closing Date, (i) Purchaser shall, and shall cause its Affiliates to, use any information relating to the Insurance Contracts or the holders of the Insurance Contracts only for the purposes of servicing customers with respect to the Insurance Contracts and operating and administering the Business (including any purpose relating to compliance by Purchaser or any of its Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to Purchaser’s ownership, operation or administration of the Business), and for the other purposes contemplated by Section 5.14(d) and (e) or required under the terms of the Distribution Agreements and, for the avoidance of doubt, Purchaser shall not make such information available to its insurance agents, insurance agencies and brokers, and (ii) except as set forth in the last sentence of this Section 5.2(e) or in Section 5.14(f), each of Parent and Seller shall, and shall cause its Affiliates to, use information relating to the Business only for the purpose of complying, or causing its applicable Affiliates to comply, with their respective obligations under this Confidentiality Agreement and the Distribution Agreements (including any purpose relating to compliance by Parent, Seller or any of their respective Affiliates with any Applicable Law, or to dealings with any Governmental Authority, relating to the servicing of the Business). Neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, may, from and after the Contract Date or as promptly thereafter as is reasonably practicable, include any information relating to the Insurance Contracts in any “data mining” program or process that is designed or intended to identify any holder of an Insurance Contract for targeted marketing or solicitation of other products offered, distributed or administered by such Person; provided that, notwithstanding the foregoing, neither Purchaser, Parent nor Seller, nor any of their respective Affiliates, shall be prohibited from including information relating to insurance or annuity Contracts not included in the Business, and any holder thereof, in any such “data mining” program or process even though such holder of such insurance or annuity Contract that is not included in the Business is also a holder of an Insurance Contract.
(f) Anything to the contrary in Section 5.2(a), (b), (c), (d) or (e) notwithstanding, the party granting access may withhold any document (or portions thereof) or information (i) that is subject to the terms of a non-disclosure agreement with a third party, (ii) that may constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as reasonably determined by such party’s counsel, constitutes a waiver of any such privilege or (iii) if the provision of access to such document (or portion thereof) or information, as determined by such party’s counsel, would reasonably be expected to violate Applicable Laws so long as the party granting access shall have used its commercially reasonable efforts to provide such information without violation of Applicable Law. The party granting access shall promptly provide, or cause its Affiliates to provide, any consent requested by its or its Affiliates’ independent accountants in connection with such access. If so reasonably requested by the party granting access, the other party shall enter into a customary joint defense agreement with the party granting access and its Affiliates with respect to any information provided to such other party pursuant to this Section 5.2(f). Any access or information provided pursuant to this Section 5.2 6.2. The Purchaser and its representatives shall be subject assert their rights hereunder in such manner as to minimize interference with the business of the Company, and shall refrain from giving instructions or issuing demands to personnel of the Company as to the applicable provisions operation of Section 5.3the Company during the period prior to the Closing.
Appears in 1 contract
Sources: Equity Interests Purchase Agreement (Hunt J B Transport Services Inc)