Access and Information. (i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that: (A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries; (B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply); (C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and (D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary. (ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor: (A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available; (B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient; (C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor)); (D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and (E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor. (iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares. (iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law. (v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 4 contracts
Sources: Securities Purchase Agreement (Bancplus Corp), Securities Purchase Agreement (Ponce Financial Group, Inc.), Securities Purchase Agreement (Broadway Financial Corp \De\)
Access and Information. (a) TetriDyn shall: (i) The afford OTE and its officers, directors, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the “OTE Representatives”) reasonable access at reasonable times, upon reasonable prior notice, to the officers, directors, employees, agents, properties, offices, and other facilities of TetriDyn and to the books and records thereof; and (ii) furnish promptly to OTE and the OTE Representatives such information concerning the business, properties, contracts, records, and personnel of TetriDyn (including financial, operating, and other data and information) as may be reasonably requested, from time to time, by OTE and the OTE Representatives.
(b) OTE shall: (i) afford to TetriDyn and its officers, directors, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the “TetriDyn Representatives”), reasonable access at reasonable times, upon reasonable prior notice, to the officers, directors, employees, accountants, agents, properties, offices, and other facilities of OTE (including any subsidiary) and to the books and records thereof; and (ii) furnish promptly to TetriDyn and the TetriDyn Representatives such information concerning the business, properties, contracts, records, and personnel of OTE (including any subsidiary) (including financial, operating, and other data and information) as may be reasonably requested, from time to time, by TetriDyn and the TetriDyn Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) section, no Party shall apply, (x) with respect be required to grant access or furnish information to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect other Party to the Inspector General extent that such access to or the furnishing of such information is prohibited by Law. No investigation by the Parties made heretofore or hereafter shall affect the representations and warranties of the Treasury Parties that are herein contained, and each such representation and warranty shall survive such investigation.
(d) The information received pursuant to this section shall be deemed to be “Confidential Information.” Each Party agrees that it will treat in confidence all documents, materials, and other Confidential Information that it shall have obtained regarding the Comptroller General other Party during the course of the United States, from and after negotiations leading to the Signing Date but, consummation of the transactions contemplated hereby (whether obtained before or after the date when of this Agreement), the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoinginvestigation provided for herein, and limited solely to information determined by the Investor to be relevant to the Preferred Sharespreparation of this Agreement and other related documents. Such documents, the Recipient will permitmaterials, and other Confidential Information shall cause each of the Recipient’s Subsidiaries not be communicated to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment person (other than assessments provided by the Appropriate Federal Banking Agency to such Party’s respective counsel, accountants, financial advisers, or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(Dlenders) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports be used for any purpose to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee detriment of the Preferred Shares other Party. No Party shall use any Confidential Information in any manner whatsoever except solely for the purpose of evaluating a possible business relationship with a liquidation preference the other Party. No Party and no OTE Representative or TetriDyn Representative will, during the term of no less than an amount equal to ten percent (10%) this Agreement or at any time during the two years thereafter, irrespective of the initial aggregate liquidation preference time, manner, or cause of termination of this Agreement, use, disclose, copy, or assist any other person in the use, disclosure, or copying of any documents, materials, or other Confidential Information of the Preferred Sharesother Party.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 4 contracts
Sources: Merger Agreement (Tetridyn Solutions Inc), Merger Agreement (Ocean Thermal Energy Corp), Merger Agreement (Ocean Thermal Energy Corp)
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect Prior to the InvestorClosing, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and SES shall permit (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries its Affiliates to permit, the Investor, the Inspector General ) representatives of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors GE Entities to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon have reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted access during normal business hours and upon reasonable notice to all premises, properties, personnel, books, records, Contracts, commitments, reports of examination and documents in such the possession or control of SES or any of its Affiliates or to which SES or any of its Affiliates otherwise has access to the extent, but only to the extent, pertaining to the Transferred Businesses, Splitco, the Equity Interests, Star One, AsiaSat and their respective Subsidiaries as may be necessary to permit the GE Entities, at their sole expense, and in a manner so as not unreasonably to interfere unreasonably with the normal operations of SES and its Subsidiaries, to make, or cause to be made, such investigation thereof as the GE Entities reasonably deem necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, and SES shall (and shall cause the SES Entities to) reasonably cooperate with any such investigations; provided, however, that SES and its Affiliates may withhold (i) any document or information that is subject to the terms of a confidentiality agreement with a third party or to non-disclosure obligations under the company policies and business custom governing the conduct of directors and officers of AsiaSat and Star One and their respective Subsidiaries; (ii) any document or information, if such disclosure would violate applicable Law or (iii) such portions of documents or information which are subject to attorney-client privilege and the business provision of which, as determined by SES’s counsel, may eliminate the privilege pertaining to such documents, in each case, only after SES and its Affiliates have used reasonable best efforts to enter into arrangements or obtain consents or waivers that would permit SES and its Affiliates to make such document or information available to the GE Entities, but has failed to enter into such arrangements or obtain such consents or waivers (but, subject to requirements of applicable Law, SES shall provide the GE Entities notice of the Recipient and nature of the Recipient information that is so withheld); provided, further, that none of SES, SES’s or its Subsidiaries;
(B) neither the Recipient ’ accountants, nor any Recipient Subsidiary SES’s Subsidiaries or Affiliates shall be required obliged to make any work papers available to any person unless and until such person has signed a customary agreement relating to such access to work papers or data in form and substance reasonably acceptable to such auditors or accountants. If so requested by this Section 4.1(c)(i) SES, the GE Entities shall enter into a customary joint defense agreement with SES and/or its Subsidiaries with respect to disclose any information to be provided to the extent (x) prohibited GE Entities pursuant to this Section 6.3. No investigation by applicable law the GE Entities or regulation their representatives or advisors prior to or after the date of this Agreement (including laws and regulations relating any information obtained by the GE Entities pursuant to this Section 6.3) shall diminish, obviate or cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or any Ancillary Agreement nor shall the conduct or completion of any such investigation be a condition to any of the GE Entities’ obligations under this Agreement. The GE Entities agree to abide by any safety rules or rules of conduct reasonably imposed by SES, its Subsidiaries or the operator of such properties, as the case may be, with respect to the use GE Entities’ access and any information furnished to the GE Entities or disclosure its representatives pursuant to this Section 6.3. Notwithstanding anything to the contrary contained herein, but subject to the provisions of confidential supervisory information)Section 6.15, prior to the Closing, without the prior written consent of SES (i) the GE Entities shall not contact any suppliers to, or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient customers of, SES, its Subsidiaries or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege their respective Affiliates with respect to the Recipient or any Recipient Subsidiary Transferred Businesses (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where GE Entities may contact customers of the restrictions AMC-23 Business if any such contact is made in this clause the presence of a representative of SES, or otherwise with SES’s consent in writing) and (B) apply);
(Cii) the obligations GE Entities shall have no right to perform invasive or subsurface investigations of the Recipient and properties or facilities of any of SES or the Recipient Subsidiaries SES Entities; it being understood that the GE Entities may conduct or cause to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General be conducted Phase I reviews of the Treasury or the Comptroller General properties and facilities of the United States Satlynx and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiarySubsidiaries.
(b) In order to facilitate the resolution of any claims made against or incurred by SES or any of its Affiliates (as they relate to Splitco, the Equity Interests or the Transferred Businesses), for a period of seven (7) years after the Closing or, if shorter, the applicable period specified in the GE Entities’ document retention policy, the GE Entities shall (i) retain the books and records relating to Splitco, the Equity Interests and the Transferred Businesses relating to periods prior to the Closing and (ii) Subject afford the representatives of SES and its Affiliates reasonable access (including the right to make, at SES’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the GE Entities shall notify SES in writing at least 30 days in advance of destroying any such books and records prior to the assignment seventh anniversary of the rights under this Section 4.1(c)(ii) pursuant Closing Date in order to Section 4.1(c)(iii), from provide SES the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause opportunity to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, copy such books and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared records in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii6.3(b), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 4 contracts
Sources: Share Redemption Agreement, Share Redemption Agreement (AsiaCo Acquisition LTD), Share Redemption Agreement (General Electric Capital Corp)
Access and Information. Upon reasonable notice, each of the Company and Parent shall (iand shall cause its subsidiaries to) The provisions afford to the other party and its representatives (including, without limitation, directors, officers and employees of the other party and its affiliates, and counsel, accountants and other advisors retained by the other party and its affiliates) such access (including, without limitation, for the purpose of conducting supplemental due diligence reviews) during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, loan and credit files, tax returns and work papers of independent auditors), properties, personnel and to such other information as such party may reasonably request; provided, however, that no investigation pursuant to this Section 4.1(c)(i) 5.3 shall applyaffect or be deemed to modify any representation or warranty made herein. The Company and Parent will not, (x) with respect and each will cause its representatives not to, use any information obtained pursuant to this Section 5.3 for any purpose unrelated to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General consummation of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Sharestransactions contemplated by this Plan. Subject to the foregoingrequirements of law, the Company and Parent will keep confidential, and limited solely will cause its representatives to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiarieskeep confidential, all upon reasonable notice, provided, that:
(A) any examinations information and discussions documents obtained pursuant to this Section 4.1(c)(i5.3 unless such information (i) shall was already known to the Company or Parent, as the case may be, or an affiliate of the Company or Parent, (ii) becomes available to the Company or Parent, as the case may be, or an affiliate of the Company or Parent from other sources not known by such party to be conducted during normal business hours and in such manner as not to interfere unreasonably bound by a confidentiality agreement, (iii) is disclosed with the conduct prior written approval of the business Company or Parent, as the case may be, or (iv) is or becomes readily ascertainable from published information or trade sources. In the event that this Plan is terminated or the transactions contemplated by this Plan shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing information and data as to another party hereto (or an affiliate of any party hereto) to be returned to the party which furnished the same. The provisions of the Recipient Confidentiality Agreements dated April 5, 1999 and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary December 23, 1998 shall be required by this Section 4.1(c)(i) to disclose any information survive to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to terms are not inconsistent with this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary5.3.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 3 contracts
Sources: Merger Agreement (Citizens Banking Corp), Merger Agreement (F&m Bancorporation Inc), Merger Agreement (Citizens Banking Corp)
Access and Information. (a) Between the date of this Agreement and the Effective Time, the Company will give, and shall direct its accountants and legal counsel to give, Purchaser, its affiliates and their respective authorized representatives (including, without limitation, accountants, legal counsel and consultants), at all reasonable times, access as reasonably requested to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company and its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require and will cause its officers, with reasonable promptness, to furnish Purchaser with (i) The provisions of this Section 4.1(c)(i) shall apply, (x) such financial and operating data and other information with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares respective businesses and (y) with respect to the Inspector General properties of the Treasury Company and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner subsidiaries as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) Purchaser may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related reasonably request, and (ii) a copy of each material report, schedule and other document filed or received by the Company pursuant to the study requirements of applicable securities laws or the NASD; PROVIDED, HOWEVER, that, between the date hereof and the time of first acceptance of Shares for payment under Section 525 of Division N the Offer, Purchaser, its affiliates and their respective authorized representatives may, upon the prior approval (which shall not be unreasonably withheld or delayed) of the Consolidated Appropriations ActCompany's Chief Executive Officer, 2021 (i) contact any employee of the Company or any of its subsidiaries directly, provided that such contact is for informational purposes only and related studiesdoes not unreasonably interfere with such employee's ongoing responsibilities to the Company or any of its subsidiaries, and (ii) have access to the Company's or any of its subsidiaries' offices and facilities, and, following the time of first acceptance of Shares for payment under the Offer, Purchaser, its affiliates and their respective authorized representatives shall not be restricted in any manner in contacting employees of the Company or any of its subsidiaries or in accessing the Company's or any of its subsidiaries' offices and facilities. No such access, inspections or furnishing of information shall have any adverse effect on Purchaser or Merger Sub's ability to assert that conditions to Closing or to the consummation of the Offer have not been satisfied.
(b) Prior to the execution and delivery of this Agreement, the Company shall have delivered to Purchaser a copy of duly adopted resolutions of the Board approving the execution, delivery and performance of the Company Transaction Documents, the Offer, the Merger and the other transactions contemplated hereby and thereby, certified by the Secretary of the Company.
Appears in 3 contracts
Sources: Merger Agreement (WHX Corp), Merger Agreement (Steel Partners Ii Lp), Merger Agreement (Steel Partners Ii Lp)
Access and Information. (a) From the date hereof until the Closing (and, with respect to any Disputed MCE System, until the expiration of the MCE Period), subject to applicable Laws, Seller shall (i) The provisions afford Buyer and its authorized representatives reasonable access, during regular business hours, upon reasonable advance notice, to the Employees, each Specified Business, the Friendco Business, Assets that will be Transferred Assets as of this Section 4.1(c)(i) shall applythe Closing and the Friendco Transferred Assets, (xii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information with respect to each Specified Business or in furtherance of the Transaction or the Exchange as Buyer from time to time reasonably requests, including, subject to Section 5.11, by providing to Buyer or its accountants sufficient information (A) for the preparation of the pro-forma balance sheet and statements of income, stockholders’ equity and cash flows for the Parent Business (in each case, if requested, assuming the Friendco Transaction and/or the Exchange have occurred) and (B) regarding compliance by Seller and its Affiliates with the requirements of the SOA with respect to the InvestorBusiness, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (yiii) instruct the Employees, and its counsel and financial advisors to cooperate with respect to the Inspector General Buyer in its investigation of the Treasury each Specified Business and the Comptroller General of the United StatesFriendco Business, from and after the Signing Date but, after the date when the Investor or one of including instructing its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect accountants to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject give Buyer access to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, work papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, ; provided, however, that in no event shall Buyer have access to any information that:
, based on advice of Seller’s counsel, would (A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of create Liability under applicable Laws, including U.S. Antitrust Laws, or waive any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of material legal privilege to the Recipient or any Recipient Subsidiary (provided provided, that the Recipient in such latter event Buyer and Seller shall use commercially reasonable efforts to make appropriate substitute cooperate to permit disclosure arrangements under circumstances where of such information in a manner consistent with the restrictions in this clause preservation of such legal privilege), (B) applyresult in the disclosure of any trade secrets of third parties or (C) violate any obligation of Seller with respect to confidentiality so long as, with respect to confidentiality, to the extent specifically requested by Buyer, Seller has made commercially reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; it being understood that Buyer shall not conduct any environmental sampling without the prior written consent of Seller, which consent may be withheld in Seller’s reasonable discretion. All requests made pursuant to this Section 5.1(a) shall be directed to an executive officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.1(a) shall, prior to the Closing, be governed by the terms of the Seller Confidentiality Agreement. No information or knowledge obtained in any investigation by Buyer pursuant to this Section 5.1(a) shall affect or be deemed to modify any representation or warranty made by Seller hereunder.
(b) From the date hereof until the Closing, subject to applicable Laws, Buyer shall, and shall cause Parent and its Controlled Affiliates to, (i) afford Seller and its authorized representatives reasonable access, during regular business hours and upon reasonable advance notice, to the Parent Business, (ii) furnish, or cause to be furnished, to Seller any financial and operating data and other information with respect to the Parent Business, the Exchange, the Redemptions or in furtherance of the Transaction as Seller from time to time reasonably requests and (iii) instruct its employees, and its counsel and financial advisors to cooperate with Seller in its investigation of the Parent Business including instructing its accountants to give Seller access to their work papers; provided, however, that in no event shall Seller have access to any information that, based on advice of Buyer’s counsel, would (A) reasonably be expected to create Liability under applicable Laws, including U.S. Antitrust Laws, or waive any material legal privilege (provided, that in such latter event Buyer and Seller shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege);, (B) result in the disclosure of any trade secrets of third parties or (C) violate any obligation of Parent with respect to confidentiality so long as, with respect to confidentiality, to the extent specifically requested by Seller, Buyer or Parent has made commercially reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; it being understood that Seller shall not conduct any environmental sampling without the prior written consent of Buyer, which consent may be withheld in Buyer’s absolute discretion. All requests made pursuant to this Section 5.1(b) shall be directed to an executive officer of Buyer or such Person or Persons as may be designated by Buyer. All information received pursuant to this Section 5.1(b) shall be governed by the terms of the TWX Confidentiality Agreement. No information or knowledge obtained in any investigation by Seller pursuant to this Section 5.1(b) shall affect or be deemed to modify any representation or warranty made by Buyer hereunder.
(c) Following the Closing and until all applicable statutes of limitations (including periods of waiver) have expired, Buyer agrees to retain all Books and Records in existence on the Closing Date, and to the extent permitted by Law and confidentiality obligations existing as of the Closing Date, grant to Seller and its representatives during regular business hours and subject to reasonable rules and regulations, the right, at the expense of Seller, (i) to inspect and copy the Books and Records and (ii) to have personnel of Buyer made reasonably available to them or have Buyer otherwise cooperate to the extent reasonably necessary, including in connection with (A) preparing and filing Tax Returns and/or any Tax inquiry, audit, investigation or dispute, (B) any litigation or investigation or (C) the obligations claims resolution, plan administration and case closing processes in the Reorganization Case; provided, however, that in no event shall Seller have access to any information that, based on advice of Buyer’s counsel, would (1) reasonably be expected to create Liability under applicable Laws, including U.S. Antitrust Laws, or waive any material legal privilege (provided, that in such latter event Buyer and Seller shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the Recipient preservation of such legal privilege), (2) result in the disclosure of any trade secrets of third parties or (3) violate any obligation of Buyer with respect to confidentiality (provided, that with respect to clause (3), to the extent specifically requested by Seller, Buyer or Parent has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality). In no event shall Seller or its representatives have access to the Tax Returns of Buyer. No Books and Records shall be destroyed by Buyer without first advising Seller in writing and giving Seller a reasonable opportunity to obtain possession thereof at the Recipient Subsidiaries to disclose transferee’s expense. All information received pursuant to this Section 4.1(c)(i5.1(c) shall be governed by the terms of Section 5.1(e).
(d) Following the Closing and until all applicable statutes of limitations (including periods of waiver) have expired (and with respect to Tax Returns, until the later of (I) the five year anniversary of the Closing and (II) the expiration of the statute of limitations with respect to such Tax Return), Seller agrees to retain all Books and Records in existence on the Closing Date and not transferred to Buyer (the “Retained Books and Records”), and to the extent permitted by Law and confidentiality obligations existing as of the Closing Date, (i) convey to Buyer copies of any Tax Returns of Seller or its Subsidiaries relating to periods (or portions thereof) ending on or after December 31, 1999 and on or before the Closing (including any amended Tax Returns relating to such periods that are filed by Seller after the Closing) (ii) grant to Buyer and its representatives the right, at the expense of Buyer and subject to reasonable rules and regulations, to inspect and make copies of any other Tax Returns of Seller or any of its Subsidiaries relating to periods (or portions thereof) ending on or before the Closing and any workpapers and tax software related to the Tax Returns described in clauses (i) or (ii) hereof, (iii) grant to Buyer and its representatives during regular business hours and subject to reasonable rules and regulations the right to inspect and make copies of Retained Books and Records not described in clauses (i) or (ii) hereof, and (iv) grant to Buyer and its representatives during regular business hours and subject to reasonable rules and regulations, the right, at the expense of Buyer, to have personnel of Seller made reasonably available to them or have Seller otherwise cooperate to the extent reasonably necessary, in each case, including in connection with (A) preparing and filing Tax Returns and/or any Tax inquiry, audit, investigation or dispute or (B) any litigation or investigation; provided, however, that in no event may Buyer or its representatives inspect, examine, review, distribute or disclose in any form the specific contents of any of Seller’s or its Subsidiaries’ income or franchise Tax Returns (or copies thereof) provided by Seller either at Closing or at a later date or of workpapers or tax software related to any such income or franchise Tax Returns (or copies thereof) until the specific contents of such income or franchise Tax Returns become relevant to Buyer in connection with (x) preparing and filing Tax Returns, or (y) any Tax inquiry, audit, investigation or dispute with a Government Entity, in each case, at which time Buyer may use such Tax Returns and related workpapers and tax software (or copies thereof) for purposes reasonably related to the activities described in (x) or (y) above; provided, further, that in no event shall Buyer or its representatives have access to any information that, based on advice of Seller’s counsel, would (1) reasonably be expected to create Liability under applicable Laws, including U.S. Antitrust Laws, or waive any material legal privilege (provided, that in such latter event Buyer and Seller shall use commercially reasonable efforts to cooperate to permit disclosure of such information in a manner consistent with the preservation of such legal privilege), (2) result in the disclosure of any trade secrets of third parties or (3) violate any obligation of Seller with respect to confidentiality (provided, that with respect to clause (3), to the extent specifically requested by Buyer or Parent, Seller has in good faith sought to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality). No Retained Books and Records shall be destroyed by Seller without first advising Buyer in writing and giving Buyer a reasonable opportunity to obtain possession thereof at the transferee’s expense.
(e) From and after the Closing, Seller and its Affiliates shall keep confidential any non-public information in their possession Related to the Business or related to the Transferred Assets (any such information that is required to keep confidential pursuant to this sentence shall be referred to as “Confidential Information”). Neither Seller nor its Affiliates shall disclose, or permit any of their respective directors, officers, employees or representatives to disclose, any Confidential Information to any other Person or use such information to the detriment of Buyer or its Affiliates; provided, that such party may use and disclose any such information (i) once it has been publicly disclosed (other than by such party in breach of its obligations under this Section 5.1(e)) or (ii) to the Inspector General extent that such party may, in the reasonable judgment of its counsel, be compelled by Law to disclose any of such information, such party may disclose such information if it has used commercially reasonable efforts, and has afforded Buyer the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i)opportunity, to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination obtain an appropriate protective order, or other satisfactory assurance of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance the information compelled to be disclosed. Except in respect of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in wholeExcluded Assets and Excluded Liabilities, the Recipient will deliver, or will cause to be delivered, to Seller Confidentiality Agreement shall terminate upon the Investor:
(A) as soon as available after Closing with no further Liability thereunder on the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy part of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investorparty thereto.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Time Warner Inc), Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Adelphia Communications Corp)
Access and Information. (a) The Company shall, and shall cause its subsidiaries to (i) The afford to Parent and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Parent Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, agents, properties, offices and other facilities of the Company and its subsidiaries and to the books and records thereof and (ii) furnish promptly to Parent and the Parent 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 Parent.
(b) Parent shall, and shall cause its subsidiaries to (i) afford to the Company and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Company Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of Parent and its subsidiaries and to the books and records thereof and (ii) furnish promptly to the Company and the Company Representatives such information concerning the business, properties, contracts, records and personnel of Parent and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by the Company.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) 5.04, neither party shall apply, (x) with respect be required to grant access or furnish information to the Investor, from other party to the Signing Date until extent that such access or the date when furnishing of such information is prohibited by law. No investigation by the Investor parties hereto made heretofore or one hereafter shall affect the representations and warranties of its Affiliates no longer owns, directly or indirectly, any Preferred Shares the parties which are herein contained and each such representation and warranty shall survive such investigation.
(d) The information received pursuant to Section 5.04 (a) and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(ib) shall be conducted during normal business hours and in such manner as not deemed to interfere unreasonably with the conduct be "Confidential Information" for purposes of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryConfidentiality Agreements.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Merger Agreement (Harte Hanks Communications Inc), Merger Agreement (Dimark Inc)
Access and Information. (a) Subject to Section 6.4, the Company shall, and the Company shall cause each Company Subsidiary to, afford to Parent and its employees, accountants, actuaries, consultants, legal counsel, agents and other representatives (collectively, the "Parent Representatives") reasonable access at reasonable times to (and the right to inspect, as applicable) the officers, employees, accountants, agents, properties, offices, facilities, books and records, and contracts of the Company and each Company Subsidiary and furnish promptly to Parent and the Parent Representatives such information (including, in the case of the contracts, copies thereof) concerning the business, operations, financial condition, properties, contracts, records and personnel of the Company and each Company Subsidiary (including financial, marketing, operating and other data and information) as may be reasonably requested, from time to time, by Parent. Notwithstanding the foregoing, the Company may limit the access provided for in this Section 6.3 the extent such access, as reasonably determined by the Company in light of the COVID-19 Pandemic or any COVID-19 Measures, could jeopardize the health and safety of any of the employees or other representatives of the Company or any Company Subsidiary.
(b) Parent shall have the right to perform reasonable non-intrusive Phase I environmental investigations, assessments and compliance audits of any Owned Realty or Leased Realty (in the case of Leased Realty, solely to the extent the Company or any Company Subsidiary owns or is responsible for a generator or fuel tank on such Leased Realty and subject to receipt of any required landlord consent), but shall not have the right to perform any intrusive or evasive sampling, testing or assessments, including any type of activities commonly referred to as a Phase II environmental investigation.
(c) Notwithstanding anything to the contrary contained herein, Parent shall (i) The provisions provide the Company with reasonable advance notice of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions request for access pursuant to this Section 4.1(c)(i6.3, (ii) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct contact any customer, supplier or employee of the Company or of any Company Subsidiary without the Company's prior consent thereto in writing and (iii) avoid any undue disruption to the business operations of the Recipient and Company or any of the Recipient Company Subsidiaries;
(B) neither . Notwithstanding anything to the Recipient nor any Recipient Subsidiary shall be required by contrary contained in this Section 4.1(c)(i) 6.3, this Section 6.3 shall not apply with respect to disclose any information to or access the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information)which the Company reasonably determines (based on the advice of counsel, including the Company's internal counsel, and after consultation with Parent and its counsel) would cause the Company to waive any attorney-client privilege or (y) that such disclosure would reasonably be expected breach any duty of confidentiality owed to cause a violation of any Person under any agreement to which the Recipient or any Recipient Subsidiary Company is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions that, in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in wholeeither case, the Recipient will deliver, Company and Parent shall reasonably cooperate in seeking alternative means (including through entering into a common interest agreement or will cause such other means to be delivered, to the Investor:
(Aallow disclosure but not waive attorney-client privilege) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all whereby such information as the Investor may request from time will be disclosed to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studiesParent without violating any such agreement or waiving such attorney-client privilege).
Appears in 2 contracts
Sources: Merger Agreement (E.W. SCRIPPS Co), Merger Agreement (E.W. SCRIPPS Co)
Access and Information. (a) From the date of this Agreement until the Closing, subject to Section 7.1 and to reasonable rules, regulations and policies of Seller and any applicable Laws, Seller shall (i) The provisions afford Purchaser and its representatives reasonable access, during regular business hours and upon reasonable advance notice to Seller, to the Latisys Companies and to the employees reasonably requested by Purchaser or as specified by Seller in connection with each such visit; provided, however, access to such employees will only be available upon reasonable notice to Seller to the attention of this Section 4.1(c)(iboth ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and at such times and places as they shall determine in their reasonable discretion. Any access shall be conducted (i) shall applyunder the supervision of Seller’s or its Affiliate’s personnel, (xii) subject to all of the standard protocols and procedures of the Latisys Companies, including the requirement that visitors be escorted at all times, (iii) subject to any additional procedures required by any landlord, and (iv) in such a manner as does not unreasonably interfere with the normal operations of the Latisys Companies. All such access shall be at the risk of Purchaser and its representatives and agents, and in connection therewith, Purchaser hereby agrees to indemnify and hold harmless Seller Indemnified Parties with respect to any Losses resulting from or arising out of such access.
(b) Following the InvestorClosing and until any applicable statute of limitations (including periods of waiver) has run, from Purchaser agrees to retain all Books and Records in existence on the Signing Closing Date until and to grant to Seller and its representatives during regular business hours and upon reasonable advance notice to Purchaser, the date when right, at the Investor or one expense of its Affiliates no longer ownsSeller, directly or indirectly, any Preferred Shares (i) to inspect and copy the Books and Records and (yii) with respect to have personnel of Purchaser made available to them or to otherwise cooperate to the Inspector General of the Treasury and the Comptroller General of the United Statesextent reasonably requested by Seller, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only including in connection with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) preparing and filing Tax returns and/or any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
Tax inquiry, audit, investigation or dispute, or (B) neither the Recipient nor any Recipient Subsidiary litigation, audit, dispute, claim or investigation. No Books and Records shall be required destroyed by this Section 4.1(c)(i) Purchaser without first advising Seller in writing and giving Seller a reasonable opportunity to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, obtain possession thereof at the InvestorSeller’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiaryexpense.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Zayo Group LLC), Stock Purchase Agreement (Zayo Group Holdings, Inc.)
Access and Information. (a) Between the date of this Agreement and the Effective Time, the Company will give, and shall direct its accountants and legal counsel to give, Purchaser and its respective authorized representatives (including, without limitation, its financial advisors, accountants and legal counsel), at all reasonable times, access as reasonably requested to all offices and other facilities and to all contracts, agreements, commitments, books and records of or pertaining to the Company and its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require and will cause its officers promptly to furnish Purchaser with (i) The provisions of this Section 4.1(c)(i) shall apply, (x) such financial and operating data and other information with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares business and (y) with respect to the Inspector General properties of the Treasury Company and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner subsidiaries as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) Purchaser may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related reasonably request, and (ii) a copy of each material report, schedule and other document filed or received by the Company pursuant to the study requirements of applicable securities laws or the NASD; provided, however, that, between the date hereof and the time of first acceptance of Shares for payment under Section 525 of Division N the Offer, Purchaser may, upon the prior written approval (which shall not be unreasonably withheld or delayed) of the Consolidated Appropriations ActCompany’s Chief Executive Officer, 2021 Chief Financial Officer or General Counsel, (i) contact any employee of the Company directly, provided that such contact is for informational purposes only and related studiesdoes not unreasonably interfere with such employee’s ongoing responsibilities to the 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 Company or in accessing the Company’s offices and facilities. No such access, inspections or furnishing of information shall have any adverse effect on Purchaser or Merger Sub’s ability to assert that conditions to Closing or to the consummation of the Offer have not been satisfied.
(b) The Chief Financial Officer of the Company shall deliver to 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 then-scheduled expiration date of the Offer, a certificate executed by such officer which sets forth the anticipated number of issued and outstanding Shares as of the date of the expiration of the Offer.
(c) Without limiting any other provision of this Agreement, from time to time during the Offer 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 orally and in writing as to the then-current status of satisfaction of the conditions to the Offer described in paragraphs (c), (e)(ii), (f), (g), (i) and (k) on Annex A hereto. The President of the Company shall deliver to the 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 immediately preceding sentence have been satisfied.
(d) Prior to the execution and delivery of this Agreement, the Company shall have delivered to the Purchaser a copy of duly adopted resolutions of the Board approving the execution, delivery and performance of this Agreement and the other agreements contemplated hereby and, in each case, the transactions contemplated thereby, certified by the Secretary of the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Fox Acquisition Co), Merger Agreement (Fox Acquisition Co)
Access and Information. (a) IN shall, and shall cause its subsidiaries to, (i) The afford 4Health and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "4Health Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, agents, properties, offices and other facilities of IN and its subsidiaries and to the books and records thereof and (ii) furnish promptly to 4Health and the 4Health Representatives such information concerning the business, pro perties, contracts, records and personnel of IN and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by 4Health or such Representatives.
(b) 4Health shall (i) afford to IN and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "IN Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of 4Health and to its books and records and (ii) furnish promptly to IN and IN Representatives such information concerning the business, properties, contracts, records and personnel of 4Health (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by IN or such Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) 5.05, neither party shall apply, (x) with respect be required to grant access or furnish information to the Investor, from other party to the Signing Date until extent that such access to or the date when furnishing of such information is prohibited by Law. No investigation by the Investor parties hereto made heretofore or one hereafter shall affect the representations and warranties of its Affiliates no longer owns, directly or indirectly, any Preferred Shares the parties which are herein contained and each such representation and warranty shall survive such investigation.
(d) The information received pursuant to Section 5.05(a) and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(ib) shall be conducted during normal business hours deemed to be "Proprietary Information" for purposes of those certain Letter Agreements dated October 16, 1997 and in such manner as not to interfere unreasonably with December 5, 1997, between IN and 4Health (collectively, the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information"Letter Agreements"), or (y) that such disclosure would reasonably be expected to cause a violation the provisions of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to survive the extent audited financial statements are available;
(B) as soon as available after the end of the firstexecution, second delivery and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) termination of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorAgreement.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (4health Inc), Agreement and Plan of Merger (4health Inc)
Access and Information. The Company and its subsidiaries shall (a) afford to Parent and its accountants, counsel and other representatives full access during normal business hours (and at such other times as the parties may mutually agree) throughout the period prior to the Effective Time to all of their properties, books, contracts, commitments, records and personnel, and (b) during such period, furnish promptly to Parent (i) The provisions a copy of this Section 4.1(c)(i) shall applyeach report, (x) with respect schedule and other document filed or received by it pursuant to the Investorrequirements of federal or state securities laws, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (yii) with respect to the Inspector General of the Treasury all other information concerning its business, properties and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Sharespersonnel as Parent may reasonably request. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitParent shall hold, and shall cause each its employees and agents to hold, in confidence all such information in accordance with the terms of the Recipient’s Subsidiaries to permitConfidentiality Agreement dated April 28, 1998 between Parent and the Company. SECTION 8.2. INDEMNIFICATION (a) Until, and after, the InvestorEffective Time, the Inspector General Purchaser's Bylaws shall contain indemnification and limitation of liability provisions which are substantially identical to the indemnification and limitation of liability provisions of Article XVII of the Treasury and the Comptroller General By-laws of the United States Company, and their respective agentssuch provisions shall not be amended, consultantsrepealed or otherwise modified in any manner that would make any of such provisions less favorable to the directors, contractors officers and advisors employees of the Company than pertain to such persons on the date hereof. Without limiting the foregoing, from the Effective Time and for a period of six years after the Effective Time, Parent shall, (xi) examine any booksindemnify, papersdefend and hold harmless the present and former officers, recordsdirectors, Tax returns employees and agents of the Company and its subsidiaries and of Purchaser (including all schedules and attachments theretocollectively, the "Indemnified Parties"), data from and other informationagainst, and pay or reimburse the Indemnified Parties for, all losses, obligations, expenses, claims, damages or liabilities resulting from third-party claims (y) make copies thereof and (z) discuss involving claims by or in the affairs, finances and accounts right of the Recipient Company) and including interest, penalties, out-of-pocket expenses and attorneys' fees incurred in the Recipient Subsidiaries with the personnel (including the principal officers) investigation or defense of any of the Recipient and same or in asserting any of their rights hereunder resulting from or arising out of actions or omissions of such Indemnified Parties occurring on or prior to the Recipient SubsidiariesEffective Time (including, all upon reasonable noticewithout limitation, provided, that:
the transactions contemplated by this Agreement) to the fullest extent permitted or required under (A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
applicable law, (B) neither the Recipient nor any Recipient Subsidiary shall be required by articles of incorporation or by-laws of the Company or Purchaser in effect on the date of this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations Agreement, including, without limitation, provisions relating to advances of expenses incurred in the use defense of any action or disclosure of confidential supervisory information)suit, or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) any indemnification agreement between the obligations of the Recipient Indemnified Party and the Recipient Subsidiaries Company; and (ii) advance to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury any Indemnified Parties expenses incurred in defending any action or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, suit with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such yearmatters, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements such Indemnified Parties are available;
(B) as soon as available after entitled to indemnification or advancement of expenses under the end Company's or Purchaser's articles of incorporation and by-laws in effect on the first, second date hereof and third quarterly periods in each fiscal year of subject to the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy terms of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents articles of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersincorporation and by-laws; provided, however thathowever, notwithstanding clauses that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim. (A)-(Eb) of this Any Indemnified Party wishing to claim indemnification under Section 4.1(c)(ii), this Section 4.1(c)(ii8.2(a) shall provide notice to the Parent promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnified Party shall permit the Parent (at its expense) to assume the defense of any claim or -27- 32 any litigation resulting therefrom; provided, however, that (i) counsel for the Parent who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party and the Indemnified Party may participate in such defense at such Indemnified Party's expense, and (ii) the omission by any Indemnified Party to give notice as provided herein shall not require relieve the Recipient Parent of its indemnification obligation under this Agreement, except to prepare audited financial statements if it the extent that such omission results in a failure of actual notice to the Parent, and the Parent is actually prejudiced as a result of such failure to give notice. In the event that the Parent does not otherwise prepare audited financial accept the defense of any matter as above provided, or counsel for the Indemnified Parties advises the Indemnified Parties in writing that there are issues that raise conflicts of interest between the Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Parent shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements and therefor are received; provided, however, that the Parent shall not require be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); provided, further, however, that the Recipient to submit Call Reports to Parent shall not be responsible for the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) fees and expenses of more than one counsel for all of the Indemnified Parties. In any event, the Parent and the Investor’s right Indemnified Parties shall cooperate in the defense of any action or claim. The Parent shall not, in the defense of any such claim or litigation, except with the consent of the Indemnified Party, consent to receive certifications from entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Recipient pursuant to Section 4.1(d)(i) may be assigned Indemnified Party or that does not include as an unconditional term thereof the giving by the Investor claimant or plaintiff to such Indemnified Party of a transferee release from all liability with respect to such claim or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shareslitigation.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Merger Agreement (Dravo Corp), Merger Agreement (Dravo Corp)
Access and Information. (a) Prior to the Closing, the Company shall, and shall cause each Company Subsidiary to, afford Buyer or its Representatives reasonable access, upon reasonable prior notice and during normal business hours to the Group Companies’ executive personnel listed on Section 6.2(a) of the Disclosure Schedule and to the Group Companies’ properties, Contracts, books and records, and other documents and data; provided, however, that (i) The provisions any such access shall be conducted at Buyer’s expense, under the reasonable supervision of this Section 4.1(c)(i) shall applyCompany personnel and in such a manner as to maintain the confidentiality of such information and not to unreasonably interfere with the normal operation of the business of the Group Companies, (xii) with respect to the Investor, from the Signing Date until the date when the Investor or one neither Buyer nor any of its Affiliates no longer ownsBuyer’s Representatives shall contact, directly or indirectly, except in the ordinary course of Buyer’s business, any Preferred Shares employee, customer or supplier of a Group Company without the Company’s prior written consent, which may be withheld in the Company’s reasonable discretion and (yiii) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, Group Company shall have any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) obligation to disclose any information to Buyer to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause (A) result in a violation material breach of any agreement to which the Recipient or any Recipient Subsidiary Group Company is a party or would cause is otherwise bound, (B) reasonably be expected to jeopardize any attorney-client or other legal privilege of any Group Company, or (C) result in a risk violation of a loss of privilege any Laws or fiduciary duties applicable to the Recipient or any Recipient Subsidiary (provided Group Company; provided, further, that the Recipient parties shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where in which the foregoing restrictions set forth in this clause clauses (A), (B) apply);
and (C) the obligations of the Recipient and the Recipient Subsidiaries above apply. The information delivered to disclose information Buyer or its authorized representatives pursuant to this Agreement, including this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors6.2(a), shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryConfidentiality Agreement.
(iib) Subject Buyer shall (i) use its reasonable best efforts to properly retain and maintain the assignment Tax and accounting records of the rights under this Section 4.1(c)(iiGroup Companies that relate to Pre-Closing Periods or Straddle Periods for a period of six (6) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be deliveredyears after Closing, to the Investor:
extent that such records are in the Group Companies’ possession as of Closing, and shall thereafter provide Seller with written notice prior to any destruction, abandonment or disposition of all or any portions of such records, (Aii) as soon as available after transfer such records to Seller upon its written request prior to any such destruction, abandonment or disposition and (iii) afford Seller and its Representatives reasonable access during normal business hours to the end of each fiscal year books and records, information, employees and auditors of the RecipientGroup Companies, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the firstrequested by Seller and necessary or useful in connection with any audit, second and third quarterly periods in each fiscal year of the Recipientinvestigation, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency dispute or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersLegal Proceeding; provided, however however, that, notwithstanding clauses with regard to (A)-(E) of this Section 4.1(c)(iiii), this Section 4.1(c)(ii) Seller agrees to reimburse Buyer promptly for all reasonable and documented out-of-pocket costs and expenses incurred in connection with such activities. Notwithstanding the forgoing, Buyer and the Group Companies shall not require be obligated to take any action that would violate any Law or the Recipient terms of any Contract or confidentiality obligation to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to which Buyer or any Group Company is a transferee party, or assignee result in a waiver of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority attorney-client privilege or work-product doctrine; provided, further, that the Inspector General of parties shall use commercially reasonable efforts to make appropriate substitute arrangements under circumstances in which the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under lawforegoing restrictions apply.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Shutterfly Inc)
Access and Information. (a) Company shall, and shall cause its subsidiaries to (i) The afford to Acquiror and the Acquiror Representatives reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of Company and its subsidiaries and to the books, records, Tax Returns and other documents thereof (including, at the request of Acquiror, copies thereof) and (ii) furnish promptly to Acquiror and the Acquiror Representatives such information concerning the business, properties, Contracts, records and personnel of Company and its subsidiaries (including, without limitation, financial, operating and other data and information and any notice, report or other document filed with or supplied to any Governmental Entity in connection with the Merger or any of the other transactions contemplated by this Agreement) as may be reasonably requested, from time to time, by Acquiror.
(b) During the period from the date of this Agreement to the Effective Time, Acquiror shall, and shall cause its subsidiaries to, furnish promptly to Company and the Representatives such information concerning the business, properties and records of Acquiror and its subsidiaries (including, without limitation, financial, operating and other data and information and any notice, report or other document filed with or supplied to any Governmental Entity in connection with the Merger or any of the other transactions contemplated by this Agreement (other than any such notice, report or other document the subject of which is a third party other than Company)) as may be reasonably requested, from time to time, by Company.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) 6.5, neither party hereto shall apply, (x) with respect be required to grant access or furnish information to the Investorrequesting
(d) If this Agreement is terminated, from each party shall, upon the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General request of the Treasury and the Comptroller General of the United Statesother party hereto, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect redeliver to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including such party all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions nonpublic written material provided pursuant to this Section 4.1(c)(i6.5 and shall not retain any copies, extracts or other reproductions of such written material. In such event, all documents, memoranda, notes and other writings (including all electronic versions thereof) prepared by the redelivering party based on the information in such material shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient destroyed (and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a redelivering party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where cause its representatives to similarly destroy the restrictions in this clause (B) applydocuments, memoranda and notes);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Merger Agreement (Kulicke & Soffa Industries Inc), Merger Agreement (Kulicke & Soffa Industries Inc)
Access and Information. (a) From the date hereof until the Closing, subject to any applicable Laws, Stockholder shall (i) The provisions afford Parent and its representatives access, during regular business hours and upon reasonable advance notice, to the Applicable Employees, the Business Assets and the Company Books and Records (including payroll information and employee data), (ii) furnish, or cause to be furnished, to Parent any financial and operating data and other information that is available with respect to the Companies as Parent from time to time reasonably requests in writing and (iii) instruct the Applicable Employees, and its counsel and financial advisors to cooperate with Parent in its investigation of the Companies, including instructing its accountants to give Parent access to their work papers; provided that in no event shall Parent have access to any information that (x) based on advice of Stockholder’s counsel, could create any potential Liability under applicable Laws, including U.S. Antitrust Laws, or could jeopardize any legal privilege or (y) in the reasonable judgment of Stockholder, could (A) result in the disclosure of any trade secrets of third parties or (B) violate any obligation of Stockholder with respect to confidentiality so long as, with respect to confidentiality, Stockholder has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality; provided, further, that a Party may designate certain portions of such documents as being provided on an outside-counsel basis only. All requests for information made pursuant to this Section 4.1(c)(i5.1(a) shall applybe directed to an executive officer of Stockholder or such Person or Persons as may be designated by Stockholder. All information received pursuant to this Section 5.1(a) shall be governed by the terms of Section 5.9.
(b) Following the Closing, upon the request of another Party, each of Stockholder, Parent, Merger Sub and the Companies (xother than Contado) shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing, grant to a requesting Party and its representatives during regular business hours, the right, at the expense of such requesting Party, to inspect and copy the books, records and other documents in the granting Party’s possession pertaining to the operation of the Companies or the Foreign Equity Investments prior to the Closing (including books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records) with respect to Stockholder, for purposes of preparing the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares requesting Party’s Tax Returns and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United StatesCompanies, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, for any Preferred Shares, only with respect purpose reasonably related to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (Transaction; provided that the Recipient shall use commercially reasonable efforts requesting Party agrees such access will give due regard to make appropriate substitute disclosure arrangements under circumstances where minimizing interference with the restrictions in this clause (B) apply);
(C) the obligations operations, activities and employees of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiarygranting Party.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 2 contracts
Sources: Merger Agreement (EVERTEC, Inc.), Merger Agreement (Popular Inc)
Access and Information. (a) During the period from the date of this Agreement and continuing until the earlier of (i) The provisions the termination of this Agreement in accordance with Section 4.1(c)(i7.1, or (ii) shall applythe Closing (the “Interim Period”), (x) with respect subject to Section 5.14 and the InvestorConfidentiality Agreement, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General each of the Treasury Company and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitMerger Sub shall give, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agentsRepresentatives to give (subject, consultants, contractors and advisors in each instance to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other informationcompliance with applicable Law, (y) make copies thereof the Company’s desire to maintain attorney-client privilege or other similar rights at its reasonable discretion, and (z) discuss the affairsconsent of or other conditions required by a Contract counterparty or service provider), finances VSAC and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiariesits Representatives, all upon at reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted times during normal business hours and upon reasonable intervals and notice, reasonable access to all offices and other facilities and to all employees, properties, Contracts, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Target Companies as VSAC 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 monthly unaudited financial statements) and cause each of the Representatives of the Company and Merger Sub to reasonably cooperate with VSAC and its Representatives in their investigation; provided, however, that VSAC and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere unreasonably with the conduct business or operations of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall Target Companies or Merger Sub; provided, further, that such access may be required by this Section 4.1(c)(i) to disclose any information limited to the extent any of the Target Companies or Merger Sub reasonably determines, in light of COVID-19 or COVID-19 Measures, that such access would jeopardize the health and safety of any employee of any of the Target Companies or Merger Sub. VSAC hereby agrees that, during the Interim Period, it shall not contact any employee (xexcluding executive officers), customer, supplier, distributor or other material business relation of any Target Company regarding any Target Company, the business or the transactions contemplated by this Agreement and the Ancillary Documents without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, the Company shall not be required to provide access to any information (i) that is prohibited by applicable law or regulation (including laws and regulations relating from being disclosed pursuant to the use or terms of a confidentiality agreement with a third party, (ii) the disclosure of confidential supervisory informationwhich would violate any applicable Law or (iii) the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege; provided that, in each such case of clause (i), (ii) or (y) that such disclosure would reasonably be expected to cause a violation iii), the Company will inform VSAC of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall same and use commercially reasonable efforts to make seek any required consent or implement appropriate substitute procedures to enable the disclosure arrangements under circumstances where of such information (including, if applicable, in a manner that does not jeopardize any attorney-client privilege); and provided further, that no information or knowledge obtained by VSAC in any investigation conducted pursuant to the restrictions access contemplated by this Section 5.1 shall affect or be deemed to modify any representation or warranty of the Company set forth in this clause (B) apply);Agreement or otherwise impair the rights and remedies available to VSAC hereunder.
(Cb) During the Interim Period, subject to Section 5.13 and the Confidentiality Agreement, VSAC shall give (subject, in each instance to (x) compliance with applicable Law, (y) VSAC’s desire to maintain attorney-client privilege or other similar rights at its reasonable discretion, and (z) the obligations consent of or other conditions required by a Contract counterparty or service provider), and shall cause its Representatives to give, the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States Company, Merger Sub and their respective agentsRepresentatives, consultantsat reasonable times during normal business hours and upon reasonable intervals and notice, contractors reasonable access to all offices and other facilities and to all employees, properties, Contracts, commitments, books and records, financial and operating data and other information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or advisors, shall be subject pertaining to the agreement by the Inspector General of the Treasury VSAC or the Comptroller General of the United Statesits Subsidiaries, as applicablethe Company, with respect to documents obtained under this Section 4.1(c)(i)Merger Sub or their respective Representatives may reasonably request regarding VSAC, to follow applicable law its Subsidiaries and regulation their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (and the applicable customary policies and procedures) regarding the dissemination of confidential materialsincluding unaudited quarterly financial statements, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated quarterly balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipientincome statement, a copy of any quarterly reports provided to each material report, schedule and other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, document filed with or received by a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing Governmental Authority pursuant to the Investor));
requirements of applicable securities Laws, and independent public accountants’ work papers (D) as soon as such items become effective, any amendments subject to the Charterconsent or any other conditions required by such accountants, bylaws or other organizational documents if any)) and cause each of VSAC’s Representatives to reasonably cooperate with the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersCompany and Merger Sub and their respective Representatives in their investigation; provided, however thathowever, notwithstanding clauses (A)-(E) that the Company and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the business or operations of this Section 4.1(c)(ii)VSAC or any of its Subsidiaries; provided, this Section 4.1(c)(ii) further, that such access may be limited to the extent VSAC or its Subsidiaries reasonably determines, in light of COVID-19 or COVID-19 Measures, that such access would jeopardize the health and safety of any employee of VSAC or its Subsidiaries. Notwithstanding the foregoing, VSAC shall not require the Recipient be required to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient provide access to submit Call Reports any information (i) that is prohibited from being disclosed pursuant to the Investor.
terms of a confidentiality agreement with a third party, (ii) the disclosure of which would violate any applicable Law or (iii) The Investor’s the disclosure of which would constitute a waiver of attorney-client, attorney work product or other legal privilege; provided that, in each such case of clause (i), (ii) or (iii), VSAC will inform the Company of the same and use commercially reasonable efforts to seek any required consent or implement appropriate procedures to enable the disclosure of such information rights (including, if applicable, in a manner that does not jeopardize any attorney-client privilege); and provided further, that no information or knowledge obtained by the Company in any investigation conducted pursuant to the access contemplated by this Section 4.1(c)(ii) and the Investor’s right 5.1 shall affect or be deemed to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee modify any representation or assignee warranty of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing VSAC set forth in this Section shall be construed to limit Agreement or otherwise impair the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide rights and remedies available to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studiesCompany hereunder.
Appears in 1 contract
Sources: Business Combination Agreement (Vision Sensing Acquisition Corp.)
Access and Information. (i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one ninety (90one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Securities Purchase Agreement
Access and Information. (a) Purchaser will: (i) The afford Sellers and their respective accountants, consultants, legal counsel, agents, and other representatives (collectively, the “Sellers Representatives”) reasonable access at reasonable times, upon reasonable prior notice, to the officers, directors, employees, agents, properties, offices, and other facilities of Purchaser (including any subsidiary) and to the books and records thereof; and (ii) furnish promptly to Sellers and Sellers Representatives such information concerning the business, properties, contracts, records, and personnel of Purchaser (including financial, operating, and other data and information) as may be reasonably requested, from time to time, by Sellers and Sellers Representatives.
(b) Sellers will: (i) afford to Purchaser and its officers, directors, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the “Purchaser Representatives”) reasonable access at reasonable times, upon reasonable prior notice, to the accountants, agents, and other representatives of Sellers; and (ii) furnish promptly to Purchaser and the Purchaser Representatives such information concerning the properties, contracts, and records of Sellers (including financial, operating, and other data and information) as may be reasonably requested, from time to time, by Purchaser and the Purchaser Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) shall applysection, (x) with respect no Party will be required to grant access or furnish information to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect other Parties to the Inspector General extent that such access to or the furnishing of such information is prohibited by Applicable Law. No investigation by the Parties made heretofore or hereafter will affect the representations and warranties of the Treasury Parties that are herein contained, and each such representation and warranty will survive such investigation.
(d) Each Party agrees that it or he will treat in confidence all documents, materials, and other confidential information that it or he will have obtained regarding the Comptroller General other Parties during the course of the United States, from and after negotiations leading to the Signing Date but, consummation of the transactions contemplated hereby (whether obtained before or after the date when of this APA), the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoinginvestigation provided for herein, and limited solely to information determined by the Investor to be relevant to the Preferred Sharespreparation of this APA and other related documents (collectively, the Recipient “Confidential Information”). Such Confidential Information will permit, and shall cause each of the Recipient’s Subsidiaries not be communicated to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment Person (other than assessments provided by the Appropriate Federal Banking Agency to such Party’s respective counsel, accountants, financial advisers, or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing lenders) and will not be used for any purpose to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents detriment of the Recipient; and
(E) other Parties. No Party will use any Confidential Information in any manner whatsoever except solely for the purpose of evaluating a possible business relationship with the other Parties. No Party and no Sellers Representative or Purchaser Representative will, during the term of this APA or at any time during the same time as such items are sent to any stockholders two years thereafter, irrespective of the Recipienttime, copies manner, or cause of termination of this APA, use, disclose, copy, or assist any other Person in the use, disclosure, or copying of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee Confidential Information of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Sharesother Parties.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) Grande Holdings and Grande Operating shall afford to the Parent Parties, their prospective sources of the Financing and the respective advisors, legal counsel, accountants, consultants and other authorized representatives of and to the foregoing reasonable access during normal business hours throughout the period prior to the Closing to all of its books, records, properties, contracts, leases, plants and personnel and, during such period, each shall make available promptly to the Parent Parties (i) The provisions a copy of this Section 4.1(c)(i) shall applyeach report, (x) with respect schedule and other document filed or received by it pursuant to the Investorrequirements of federal or state securities Laws, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (yii) with respect to the Inspector General all other information as any of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable noticethem reasonably may request, provided, that:
(A) any examinations and discussions that no investigation pursuant to this Section 4.1(c)(i7.1 shall affect any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Transactions and neither Grande Holdings nor Grande Operating shall be deemed to make any representation or warranty with respect to any reports or other information provided pursuant to this Section 7.1.
(b) Without limiting the generality of Section 7.1(a), from the date hereof through the Closing, Grande Holdings shall cause Grande Employees that are director level and above (including applicable general managers or vice presidents) to participate in a monthly telephonic meeting with Parent’s representatives during which such Grande Employees shall provide an update as to the operations and performance of the Business and matters relating to the transition of ownership and management of Grande Operating to Parent and Atlantic Broadband and the consummation of the Transactions (including with respect to Franchise matters).
(c) Without limiting the generality of Section 7.1(a), Grande Holdings shall make available to Parent correct and complete copies of (i) all rate regulation documents for filing with Governmental Authorities relating to the Business prepared or filed at any time between the date of this Agreement and the Closing, and (ii) all material correspondence, filings and submissions concerning the Business with or to any Governmental Authority sent or made between the date of this Agreement and the Closing. In addition, within fifteen (15) days after the last day of each month (commencing with the month ending on July 31, 2009), Grande Holdings shall deliver to Parent a report setting forth, for each Cable System the following information or substantially similar information, using the methodologies and practices used by Grande Holdings in the Ordinary Course of Business to compile information of such type heretofore provided to the Parent Parties: (A) the number of Active Customers, Equivalent Basic Video Subscribers and Individual Basic Video Subscribers for such System as of the last day of such CSG month, (B) the number of Customers enrolled in discounted or promotional packages as of the last day of such CSG month, and (C) the number of Customers of each Service whose service was disconnected during such CSG month.
(d) Without limiting the generality of Section 7.1(a), from the date hereof through the Closing, Grande Holdings shall, within 30 days after the end of each calendar month (commencing with the month ended on July 31, 2009), deliver to Parent the unaudited consolidated balance sheet of Grande Holdings and Grande Operating as of the last day of such month, together with the related consolidated statements of income, stockholders’ equity and cash flows for Grande Holdings and Grande Operating for the monthly period then ending and for the portion of the calendar year ending with such month. The financial statements to be delivered pursuant to this Section 7.1(d) shall be conducted during normal business hours prepared from and in such manner as not to interfere unreasonably accordance with the conduct books and records of Grande Holdings and Grande Operating and GAAP applied on a consistent basis (subject to year-end adjustments) and shall fairly present the consolidated financial position of Grande Holdings and Grande Operating as of the business of the Recipient respective dates thereof and the Recipient Subsidiaries;consolidated results of operations and cash flows (and changes in financial position, if any) of Grande Holdings and Grande Operating for the periods therein (subject to year-end adjustments that are not material in nature or amount and the absence of financial footnotes).
(Be) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws Grande Holdings and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient Grande Operating shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where assist the restrictions Parent Parties in this clause obtaining the Financing, including (Bi) apply);
providing information reasonably requested for the preparation of confidential information memoranda (C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, whether with respect to documents obtained under this Section 4.1(c)(i)a syndicated bank financing) and rating agency presentations with respect to any proposed Financing, to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject delivering such financial and statistical information and projections relating to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii)Grande Holdings and Grande Operating as may be reasonably requested in connection with any Financing, from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investorarranging for the independent accountants, lawyers and other advisors and consultants of Grande Holdings and Grande Operating to be reasonably available to consult with Parent’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
representatives regarding any Financing, (iv) Nothing making appropriate employees of Grande Holdings and Grande Operating available on reasonable notice to provide such assistance, including to participate in this Section shall be construed to limit the authority that the Inspector General of the Treasurydue diligence meetings and meetings with rating agencies and prospective Financing sources, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide providing timely access to diligence materials and appropriate personnel on reasonable notice to allow prospective Financing sources and their representatives to complete all appropriate diligence, (vi) providing assistance with respect to the Investor all such information as review and granting of security interests in collateral for any Financing, and (vii) cooperating with the Investor preparation to effect the transfer and contribution by Grande Operating after the Closing to one or more newly formed Subsidiaries which are wholly owned (directly or indirectly) by Ultimate Parent certain assets of Grande Operating used or held for use principally in connection with the broadband transport and network services and other businesses of Grande Operating, other than the business of providing cable television, telephone, broadband internet and other related services for residential and commercial customers, that the ABRY Parties may request identify from time to time (the “Non-Core Assets Transfer”), including cooperating to prepare requests for consents from any Governmental Authority or any other Person; provided, that in each case such assistance does not unreasonably disrupt the normal operations of the Business nor cause any breach of Contracts of Grande Holdings or Grande Operating. Notwithstanding anything to the contrary in this Agreement or otherwise, (A) no request for consent related to a Non-Core Assets Transfer will be submitted to any Governmental Authority or any other Person until after the study Closing, (B) the representations and warranties of Grande Holdings and Grande Operating set forth in Article IV of this Agreement (and the related bring-down of such representations and warranties under Section 525 of Division N 8.2(b)) shall be made without giving effect to any Non-Core Asset Transfer, (C) any restrictive covenants applicable to Grande Holdings or Grande Operating during the period between the date hereof until the Closing Date shall not be construed to prohibit any action taken upon the request of the Consolidated Appropriations ActABRY Parties in furtherance of any Non-Core Asset Transfer (and any such action shall not be construed as a breach by Grande Holdings or Grande Operating of any such covenant), 2021 (D) the ABRY Parties shall be responsible for identifying any non-core assets to be transferred, identifying and obtaining any related studiesconsents required to transfer such assets and preparing all of the organizational agreements associated with any such Subsidiaries and definitive agreements associated with any such Non-Core Asset Transfer, and (E) neither Grande Holdings nor Grande Operating makes any representation or warranty whatsoever as to the accuracy of any pro forma financial information or projections relating to the Business on any segmented basis, including with respect to any Non-Core Assets Transfer. Any out-of-pocket expenses and costs incurred by (x) Grande Holdings or Grande Operating prior to Closing in the performance of their obligations under this Section 7.1 shall be borne by ABRY and (y) Ultimate Parent and its Subsidiaries prior to Closing in connection with the matters described in this Section 7.1 shall be borne by ABRY and, if the Closing occurs, all such expenses described in clauses (i) or (ii) above shall constitute ABRY Transaction Expenses.
Appears in 1 contract
Sources: Recapitalization Agreement (Grande Communications Holdings, Inc.)
Access and Information. Upon at least three (i3) The provisions of this Section 4.1(c)(i) shall applydays prior written notice, (x) Purchaser agrees to provide Seller reasonable access to the Owned Real Property as is required for Seller to satisfy its obligations with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period Retained Environmental Liabilities as described above in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoingSection 6.20(a), and limited solely Purchaser will permit Purchaser’s employees to information determined by the Investor provide reasonable levels of support and to be relevant to the Preferred Sharescooperate with Seller (including without limitation, the Recipient will permit, and shall cause each provision of the Recipient’s Subsidiaries information reasonably available to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors Purchaser) as is necessary for Seller to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions satisfy such obligations. All actions taken by Seller pursuant to this Section 4.1(c)(i6.20 (i) shall not unreasonably interfere with the operation of the Business and (ii) shall be conducted during normal business hours completed in a commercially reasonable manner and in such manner as not accordance with Applicable Law, including Environmental Laws and Health and Safety Laws. Seller will (A) reimburse Purchaser for any costs incurred by Purchaser in providing support or cooperation to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
Seller, (B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) keep Purchaser informed as to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information Seller’s activities pursuant to this Section 4.1(c)(i) to 6.20 and the Inspector General status of, and any development related to, all of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (Retained Environmental Liabilities and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as activities required to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions undertaken by Purchaser pursuant to this Section 4.1(c)(i6.20, (C) may, at the Investor’s option, be conducted on site at promptly provide Purchaser with copies of any office of the Recipient correspondence or other documents provided to or received from any Recipient Subsidiary.
(ii) Subject Governmental Entity related to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iiisuch matters), (D) indemnify, defend and hold the Purchaser Indemnitees harmless from the Signing Date until the date on which and against any and all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, Liabilities and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited Losses to the extent audited financial statements are available;
(B) as soon as available after arising, in whole or part, out the end performance by Seller, its employees, agents, independent contractors, sub-contractors or Persons acting on their behalf, of any of the firstactions described above, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies give Purchaser notice of any information or documents sent by the Recipient proposed meeting with any Government Entity at least 5 Business Days prior to such meeting and permit Purchaser and its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall advisors to attend and observe such meeting but not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investoractively participate in any such meeting.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Asset Purchase Agreement (Cytec Industries Inc/De/)
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to From the Investor, from the Signing Date date hereof until the date when Closing Date, subject to any applicable Law and subject to any applicable privileges (including the Investor or one of its Affiliates no longer ownsattorney-client privilege), directly or indirectly, any Preferred Shares Trade Secrets and contractual confidentiality obligations (y) with respect to provided that the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitSeller Parties shall, and shall cause each of the Recipient’s Subsidiaries to permitISP to, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where obtain a waiver of any such contractual confidentiality obligations if requested by Buyer), upon reasonable prior notice, the restrictions in this clause Seller Parties shall (Bi) apply);
(C) afford Buyer, and its representatives, reasonable access, during normal business hours, to the obligations Books and Records, Contracts, Governmental Authorizations and the offices and properties of the Recipient Companies, (ii) furnish to Buyer such additional financial data and other information regarding the Recipient Subsidiaries Companies as Buyer may from time to disclose time reasonably request and (iii) make reasonably available to Buyer the Employees ; provided, however, that the reasonableness of such access and requests shall be determined by taking into account, among other considerations, the competitive positions of the parties; provided, further, that such investigation shall (i) be under the supervision of the Seller Parties’ designated personnel or representatives and (ii) be in such a manner as not to unreasonably interfere with any of the businesses or operations of the Seller Parties or their respective Affiliates (including the Companies); provided, further, that all requests for information made pursuant to this Section 4.1(c)(i5.1(a) shall be directed to the Inspector General such Person or Persons as may be designated by Sellers’ Representative, and Buyer shall not directly or indirectly contact any officer, director, employee, agent or representative of the Treasury Seller Parties, any Company or any of their respective Affiliates without the Comptroller General prior approval of such designated Person(s); and provided, further, that the auditors and independent accountants of the United States and Seller Parties or their respective agents, consultants, contractors Affiliates (including the Companies) shall not 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 advisors, shall be subject to the agreement independent accountants. If so reasonably requested by the Inspector General of the Treasury or the Comptroller General of the United StatesSeller Parties, Buyer shall, and shall cause its Affiliates (as applicable) to, enter into a customary joint defense agreement with the Seller Parties or their respective Affiliates with respect to documents obtained under this Section 4.1(c)(i), any information to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as be provided to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions Buyer pursuant to this Section 4.1(c)(i) may, at 5.1(a). Buyer shall reimburse the Investor’s option, be conducted Seller Parties promptly for any reasonable out-of-pocket expenses incurred by the Seller Parties and their respective Affiliates in complying with any request by or on site at any office behalf of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under Buyer in connection with this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii5.1(a), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to From the Investor, from the Signing Date date hereof until the date when the Investor or one of its Affiliates no longer ownsClosing, directly or indirectly, any Preferred Shares and (y) with respect subject to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Sharesapplicable Law, the Recipient will permit, Sellers’ Representative shall and shall cause each any other relevant members of Sellers’ Group to afford the Recipient’s Subsidiaries Purchasers’ Representative, subject to permitany contractual restrictions, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted access during normal business hours upon reasonable advance notice to the assets, books and records, offices and other facilities of the Target Business and senior management of the Target Companies, in such manner as not each case, to interfere unreasonably with the conduct extent reasonably required by the Purchasers’ Representative to ensure an orderly and efficient transition of the Target Business to the Purchasers and to prepare for the launch of the Offer and the Closing; provided, however, that in no event shall the Purchasers’ Group have access to any information that (x) relates solely to a part of the business of the Recipient Sellers’ Group or its subsidiaries that are not being transferred pursuant to this Agreement, (y) based on advice of Sellers’ outside counsel, or in Sellers’ reasonable determination, would violate applicable Law or fiduciary standards, or could reasonably be expected to destroy any legal privilege or (z) in the reasonable judgment of any member of the Sellers’ Group could violate any obligation of the Sellers’ Group with respect to confidentiality (provided that the Sellers’ Representative shall, and shall cause such member of the Recipient Subsidiaries;Sellers’ Group to, use its reasonable best efforts to narrow any such confidentiality obligation or to obtain a waiver or consent from such third party so as to allow disclosure to the Purchasers as set forth herein). Notwithstanding anything to the contrary in this Section 5.5 (Access and Information), the Purchasers’ Representative shall have the right to review, and shall have reasonable access to, ledgers, sub ledgers and other relevant books and records of the Target Companies and all relevant work papers and relevant supporting documentation prepared by the Sellers’ Representative or any member of the Sellers’ Group (including the Target Companies) or their accountants in connection with the preparation of the Net Debt Statement, each Draft Net Debt Statement, and each calculation of Company Salary Mass contemplated by this Agreement (subject, in the case of independent accountants of the Sellers’ Group, to the appropriate members of the Purchasers’ Group executing customary confidentiality and hold harmless agreements relating to access to such working papers in form and substance reasonably acceptable to such independent accountants), as well as to relevant personnel of Sellers’ Representative or any members of the Sellers’ Group (including relevant personnel of the Target Companies) which Purchasers’ Representative may reasonably request in connection with its review of the information contemplated herein. All information received pursuant to this Section 5.5(a) (Access and Information) shall be governed by the terms of the Confidentiality Agreement.
(Bb) neither The Purchasers’ Representative shall not, and shall ensure that none of the Recipient Purchasers nor any Recipient Subsidiary member of the Purchasers’ Group shall be required by this Section 4.1(c)(iprior to the Closing contact specifically in connection with or with respect to the Transactions (i) any institutional or government client or customer of the Target Companies or (ii) any joint venture partners of the Target Companies (in the case of each of (i) and (ii)), without (x) the prior written consent of the Sellers’ Representative and (y) the involvement in each case of the Sellers’ Representative or its Representatives, on such terms and conditions as the Sellers’ Representative may reasonably specify from time to disclose time; provided, that nothing herein shall limit or restrict the ability of any information member of the Purchasers’ Group to conduct its business in the ordinary course.
(c) Following the Closing, to the extent permitted by applicable Law, the Purchasers’ Representative agrees to provide (or cause the relevant members of the Purchasers’ Group to provide) the Sellers’ Representative with all necessary access to all books and records and other documents 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 any member of the Sellers’ Group to (w) defend or prosecute any judicial, arbitral or regulatory proceeding, audit or investigation to which any Sellers’ Group member is a party and which relates to the business and affairs of the Pensions Business Unit prior to the Closing, (x) prohibited by applicable law prepare financial statements or regulation (including laws and regulations relating regulatory filings of the Sellers’ Group in respect of periods ending on or prior to the use or disclosure of confidential supervisory information)Closing Date, or (y) comply with the terms of this Agreement, any other Transaction Document, any applicable Law or request of any Government Authority; provided that in the case of any confidential information of the Purchasers or any member of the Purchasers’ Group that is provided to the Sellers, the provision of such disclosure information to the Sellers’ Group and its Representatives is subject to the Sellers’ Group and its Representatives agreeing to maintain the confidentiality of such information; and provided further, that neither the Purchasers’ Representative nor any member of the Purchasers’ Group shall be required to provide such access (i) to commercially-sensitive proprietary information of the Purchasers’ Group to the extent it is not related to the Target Business (provided that a copy of the requested information with any such commercially-sensitive portions redacted is provided to the Sellers’ Group) or (ii) to the extent that doing so would violate applicable Law or an obligation of confidentiality of a member of the Purchasers’ Group owing to a third party or would reasonably be expected to cause a violation of any agreement to which result in the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of attorney client privilege to the Recipient or any Recipient Subsidiary (provided that in the Recipient case of a confidentiality obligation, the Purchasers’ Representative shall, and shall cause such member of the Purchasers’ Group to, use commercially its reasonable best efforts to make appropriate substitute narrow any such confidentiality obligations or to obtain a waiver or consent of such third party so as to allow disclosure arrangements under circumstances where to the restrictions in this clause Sellers as set forth herein). The Purchasers’ Representative agrees to (B) apply);
(C) or to cause the obligations relevant members of the Recipient Purchasers’ Group to) retain and the Recipient Subsidiaries to disclose information preserve all books and records and all other documents that it or they acquire pursuant to this Section 4.1(c)(iAgreement, in compliance with all applicable Law, for at least six (6) years following the Final Closing Date.
(d) In order to facilitate the review of the Net Debt Statement by the Purchasers’ Representative, on or as promptly as practicable after the seventh (7th) Business Day of each month (and until the Net Debt Statement has been delivered), the Sellers’ Representative shall deliver to the Inspector General Purchasers’ Representative for its review a draft Net Debt Statement (each a “Draft Net Debt Statement”), assuming (x) the Balance Sheet Date would be the last Business Day of the Treasury immediately preceding month and (y) the Launch Date would be 30 calendar days following the date of delivery of such Draft Net Debt Statement. Each Draft Net Debt Statement shall be prepared in accordance with the principles set out in Section 2.4(a) (Net Debt Statement; Net Debt Dividend). The Purchasers’ Representative will promptly inform the Sellers’ Representative of any questions or the Comptroller General comments it has in respect of the United States Draft Net Debt Statement, and their respective agentsthe Purchasers’ Representative and the Sellers’ Representative shall discuss and attempt to resolve in good faith, consultants, contractors on an ongoing basis any reasonable questions or advisors, shall be subject to the agreement issues raised by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, Purchasers’ Representative with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end contents of each fiscal year Draft Net Debt Statement for ten (10) Business Days (unless the parties agree to extend such period including in light of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of issues or questions remaining at the end of such fiscal yearperiod) following the delivery of such Draft Net Debt Statement. Any such questions, comments or issues discussed among the Purchasers’ Representative and consolidated statements of income, retained earnings the Sellers’ Representative and cash flows their respective advisors shall be without prejudice to any rights or remedies that the parties may have hereunder with respect to objections to any item of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorNet Debt Statement.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Transaction Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Access and Information. Between the date hereof and the Closing Date, provided that this Agreement has not been terminated as expressly permitted herein, Limited Partner and Limited Partner's representatives on behalf of all Purchaser Parties shall have the right to enter upon the Properties for the sole purpose of inspecting the Properties, and Limited Partner, at its sole cost and expense, may perform, or cause to be performed, tests, investigations and studies of or related to the Properties, including, but not limited to, soil tests and borings, ground water tests and investigations, percolation tests, surveys, architectural, engineering, subdivision, environmental, access, financial, market analysis, development and economic feasibility studies and other tests, investigations or studies as Limited Partner, in its sole discretion, determines is necessary or desirable in connection with the Properties and may inspect the physical (iincluding environmental) The provisions and financial condition of this Section 4.1(c)(ithe Properties, including but not limited to Space Leases, copies of Lower Tier Entity, each Philips QRS, Contributor and Contributor Parent's filings, if any, with the Securities and Exchange Commission (the "SEC"), engineering and environmental reports, development approval agreements, permits and approvals (collectively, the "Investigations"); provided: (a) Limited Partner shall applygive Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent not less than one day's prior notice before each entry; (xb) each notice shall include sufficient information to permit Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent to review the scope of the proposed Investigations; (c) neither Limited Partner nor Limited Partner's representatives shall permit any borings, drillings or samplings to be done on any of the Properties without Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent's prior written consent, which shall not be unreasonably withheld or delayed; and (d) any entry upon any of the Properties and all Investigations shall be during Lower Tier Entity, each Philips QRS, Contributor and Contributor Parent's normal business hours and at the sole risk and expense of Limited Partner and Limited Partner's representatives, and shall not interfere in any material respect with the activities on or about the Properties of Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent, its tenants and their employees and invitees. Lower Tier Entity, each Philips QRS, Contributor and Contributor Parent agree to cooperate with Limited Partner in such review and inspection. Limited Partner shall:
8.6.1 promptly repair any damage to any of the Properties resulting from any such Investigations and replace, refill and regrade any holes made in, or excavations of any portion of the Properties used for such Investigations so that the Properties shall be in the same condition that it existed in prior to such Investigations;
8.6.2 fully comply with all laws applicable to the Investigations and all other activities undertaken in connection therewith;
8.6.3 permit Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent to have a representative present during all Investigations undertaken hereunder;
8.6.4 take all actions and implement all protections necessary to ensure that all actions taken in connection with the Investigations, and the equipment, materials, and substances generated, used or brought onto the Properties pose no threat to the safety or health of persons or the environment, and cause no damage to the Properties or other property of Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent or other persons;
8.6.5 furnish to Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent, upon request and at no cost or expense to Lower Tier Entity, each Philips QRS, Contributor or Contributor Parent, copies of all surveys, soil test results, engineering, asbestos, environmental and other studies and reports relating to the Investigations that Limited Partner or Limited Partner's representatives shall obtain with respect to the InvestorProperties promptly after Limited Partner's or Limited Partner's representatives' receipt of same;
8.6.6 not allow the Investigations or any and all other activities undertaken by Limited Partner or Limited Partner's representatives to result in any liens, judgments or other encumbrances being filed or recorded against any of the Properties, and Limited Partner shall, at its sole cost and expense, promptly discharge of record any such liens or encumbrances that are so filed or recorded (including liens for services, labor or materials furnished); and
8.6.7 indemnify, defend and hold harmless Seller Parties, Non-REIT Unitholders, Pilevsky Partners, Sellers and Seller's Affiliates from and against any and all claims, demands, causes of action, losses, damages, liabilities, costs and expenses (including attorneys' fees and disbursements), suffered or incurred by Seller Parties, Non-REIT Unitholders, Pilevsky Partners and Seller's Affiliates and arising out of or in connection with (i) Limited Partner's and/or Limited Partner's representatives entry upon any or all of the Signing Date until Properties, (ii) any Investigations or other activities conducted thereon by Limited Partner or Limited Partner's representatives, (iii) any Liens or other encumbrances filed or recorded against any or all of the date when Properties as a consequence of the Investor Investigations or one of its Affiliates no longer ownsany and all other activities undertaken by Limited Partner or Limited Partner's representatives, directly and/or (iv) any and all other activities undertaken by Limited Partner or indirectly, any Preferred Shares and (y) Limited Partner's representatives with respect to the Inspector General any or all of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryProperties.
(ii) Subject to 8.6.8 This Section 8.6 shall survive the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, Closing or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) earlier termination of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorAgreement.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Asset Contribution, Purchase and Sale Agreement (Philips International Realty Corp)
Access and Information. (a) From the date hereof until the Closing, subject to any applicable Laws, Seller shall (i) The provisions afford Buyer and its representatives access, during regular business hours and upon reasonable advance notice, to the Applicable Employees and the assets, books and records of the Business (including payroll information and employee data), (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 in writing and (iii) instruct the Applicable Employees, and their counsel and financial advisors to cooperate with Buyer in its investigation of the Business, including instructing its accountants to give Buyer access to their work papers; provided, however, that in no event shall Buyer have access to any information that (A) based on advice of Seller’s counsel, could create any potential Liability under applicable Laws, including U.S. Antitrust Laws, or could destroy any legal privilege or (B) in the reasonable judgment of Seller, could (1) result in the disclosure of any trade secrets of third parties or (2) violate any obligation of Seller with respect to confidentiality so long as, with respect to confidentiality, Seller has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. All requests for information made pursuant to this Section 4.1(c)(i5.01(a) shall applybe directed to an executive officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.01(a) shall be governed by the terms of Section 5.11.
(b) Following the Closing, upon the request of another Party, each of Seller, Buyer and the Companies shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing, grant to a requesting Party and its representatives, during regular business hours, the right, at the expense of such requesting Party, to inspect and copy the books, records and other documents in the granting Party’s possession pertaining to the operation of the Business prior to the Closing (xincluding books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records) with respect to Seller, for purposes of preparing the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares requesting Party’s Tax Returns and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United StatesCompanies, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, for any Preferred Shares, only with respect purpose reasonably related to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersTransaction; provided, however thathowever, notwithstanding clauses (A)-(E) that the requesting Party agrees such access will give due regard to minimizing interference with the operations, activities and Employees of this Section 4.1(c)(ii), this Section 4.1(c)(ii) the granting Party. In no event shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports Seller or Buyer have access to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee consolidated federal, state or assignee local Tax Returns of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Sharesother Parties.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect In addition to the Investorinformation rights described in Sections 7.2 and 7.3 of the LLC Agreement, from the Signing Date until the date when the Investor or one of Subscriber and its Affiliates no longer ownsrepresentatives shall have reasonable access during normal business hours, directly or indirectlyupon reasonable advance notice, any Preferred Shares and (y) with respect to the Inspector General books and records of the Treasury Company and other information reasonably related to the Comptroller General purchase of the United StatesShares including, from but not limited to, management reports, budgets, forecasts and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to strategic plans (notwithstanding that such information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each may constitute trade secrets of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments theretoCompany), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) provided that such access shall be conducted during normal business hours by Subscriber and its representatives in such a manner as not to interfere unreasonably with the conduct of the business of the Recipient and Company.
(b) In connection with the Recipient Subsidiariesinformation referred to in paragraph (a) above, the Company may disclose confidential information to Subscriber. All such information, other than information that:
(i) is known by Subscriber prior to its disclosure to Subscriber by the Company or its representatives;
(Bii) neither is or becomes publicly available other than as a result of a disclosure by Subscriber or its representatives; or
(iii) is or becomes available to Subscriber or its representatives on a nonconfidential basis from a source (other than the Recipient nor any Recipient Subsidiary shall be required Company or its representatives) which, to Subscriber’s knowledge, is not prohibited from disclosing such information by this Section 4.1(c)(i) a confidentiality obligation with the Company, is referred to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws as “Confidential Information”. Subscriber agrees that it and regulations its representatives will keep Confidential Information relating to the use Company confidential and will not (except as required by applicable law, regulation or disclosure of confidential supervisory informationlegal process or as otherwise provided herein), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which without the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);Company’s prior written consent:
(Ci) the obligations of the Recipient and the Recipient Subsidiaries disclose any Confidential Information to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of any other person other than its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriaterepresentatives; and
(Dii) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at not use Confidential Information other than in connection with the Investor’s option, be conducted on site at any office acquisition of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii)Shares, from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end its monitoring of such fiscal year, investment and consolidated statements of income, retained earnings with respect to Alternate Funds and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy exercise of any quarterly reports provided to other stockholders of rights in connection therewith. In the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies event of any information or documents sent by inconsistency between the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) provisions of this Section 4.1(c)(ii)5.1(b) and Section 5.6 of the LLC Agreement, the provisions of this Section 4.1(c)(ii5.1(b) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investorcontrol.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Subscription Agreement (Thomas Weisel Partners Group, Inc.)
Access and Information. (i) The provisions of this Section 4.1(c)(i) shall applyUpon reasonable notice, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General each of the Treasury Company and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, Acquiror shall (and shall cause each of its subsidiaries to) afford to the Recipient’s Subsidiaries to permitother and their representatives (including, the Investorwithout limitation, the Inspector General directors, officers and employees of the Treasury other party hereto and its affiliates and counsel, accountants and other professionals retained by it) such access during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), properties, personnel and to such other information as the Acquiror or the Company reasonably requests; provided, however, that neither the Company nor the Acquiror shall be required to provide access to any such information if the providing of such access (i) would violate a binding contractual obligation, (ii) would, as advised by outside counsel, be reasonably likely to result in the loss or impairment of any privilege with respect to such information or (iii) would be precluded by any law, ordinance, regulation, judgment, order, decree, license or permit of any governmental entity. Any access granted to the Company and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions Acquiror pursuant to this Section 4.1(c)(i) 5.4 shall be conducted during normal business hours not in any way limit any representation or warranty set forth in this Agreement. The rights and in such manner as not to interfere unreasonably with the conduct obligations of each of the business of the Recipient Acquiror and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information Company pursuant to the extent Confidentiality Letter Agreement, dated October 22, 1998 (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information"Confidentiality Agreement"), or (y) that such disclosure would reasonably be expected to cause a violation between the Acquiror and the Company, shall survive the execution and delivery of any agreement to which this Agreement, and all information heretofore and hereafter obtained by the Recipient Acquiror, the Company or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information their advisors pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury 5.5 or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, otherwise shall be deemed to be covered by the Confidentiality Agreement (subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(iexceptions provided for therein), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet the case of the Recipient as Acquiror, shall remain subject to the provisions of such Confidentiality Agreement until the Effective Time and, in the case of the end Company shall remain subject to the provisions of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared Confidentiality Agreement in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investorterms thereof.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) From the date hereof until the Closing, the Seller shall (i) The provisions afford the Buyer and its Representatives reasonable access, at all reasonable times during regular business hours and upon reasonable advance notice, to the Employees and the properties, manufacturing facilities, assets, systems, Tax Returns, Books and Records and contracts of this Section 4.1(c)(ithe Business (other than the Excluded Business), (ii) furnish, or cause to be furnished, to the Buyer (A) copies of all Books and Records, contracts and other existing documents and (B) additional financial, operating and other data and information, in each case as the Buyer from time to time reasonably requests and (iii) instruct the Employees, and its counsel and financial advisors to cooperate with the Buyer in its investigation of the Business (other than the Excluded Business), including instructing its accountants to give the Buyer access to their work papers; provided, however, that in no event shall apply, the Buyer have access to any information that (x) based on advice of the Seller’s counsel, would create any potential Liability under applicable Laws, including U.S. Antitrust Laws or (y) in the reasonable judgment of the Seller, would (A) result in the disclosure of any trade secrets of third parties or (B) violate any obligation of the Seller with respect to confidentiality so long as, with respect to confidentiality, the Seller has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. No investigation pursuant to this Section 5.1(a) shall alter any representation or warranty given hereunder by the Seller. All requests for information made pursuant to this Section 5.1(a) shall be directed to R▇▇▇▇▇▇ Y.T. Sy or such Person or Persons as may be designated by the Seller. All information received pursuant to this Section 5.1(a) shall be governed by Section 5.11 and the Confidentiality Agreement.
(b) Following the Closing, upon the request of the other party, the Seller and the Buyer shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing Date, grant to the other party and its Representatives during regular business hours and subject to reasonable rules and regulations of the granting party, the right, at the expense of the non-granting party, to inspect and copy the books, records and other documents in the granting party’s possession pertaining to the operation of the Business (other than the Excluded Business) prior to the Closing (including books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records). In no event shall either party have access to the consolidated, combined or unitary federal, state or local Tax Returns of the other party; provided, however, that the Seller shall, if requested by the Buyer, prepare pro forma returns for periods ending on or prior to the Closing Date with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient Company or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient other Transferred Subsidiary.
(iic) Subject The Buyer agrees to retain all Books and Records in existence on the Closing Date for at least three years following the Closing in accordance with its normal retention policies and to make personnel of the Buyer available to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, Seller to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, extent in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures that such access is reasonably related to any Excluded Assets or Excluded Liabilities or otherwise necessary for the previous fiscal year Seller in connection with this Agreement (including confirmation of Actual EBITDA for the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end purpose of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the InvestorContingent Payments));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States Ancillary Agreement or any other applicable Governmental Entity has under lawLaw.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Share Purchase Agreement (Cree Inc)
Access and Information. (a) Holdings shall, and shall cause its subsidiaries to, (i) The afford to Company and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Company Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, agents, properties, offices and other facilities of Holdings and its subsidiaries and to the books and records thereof, and (ii) furnish promptly to Company and the Company Representatives such information concerning the business, properties, contracts, records and personnel of Holdings and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by Company.
(b) Company shall, and shall cause its subsidiaries to, (i) afford to Holdings and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Holdings Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of Company and its subsidiaries and to the books and records thereof, and (ii) furnish promptly to Holdings and the Holdings Representatives such information concerning the business, properties, contracts, records and personnel of Company and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by Holdings.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) shall apply5.07, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary party shall be required by this Section 4.1(c)(i) to disclose any grant access or furnish information to the other party to the extent (x) that such access or the furnishing of such information is prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party Law or would cause a risk of a loss of privilege waive any rights to privileged communications. No investigation by the Recipient parties hereto made heretofore or any Recipient Subsidiary (provided that hereafter shall affect the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations representations and warranties of the Recipient parties which are herein contained and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States each such representation and their respective agents, consultants, contractors or advisors, warranty shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiarysurvive such investigation.
(iid) Subject to the assignment of the rights under this Section 4.1(c)(ii) The information received pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
subsections (Aa) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(Eb) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) 5.07 shall not require the Recipient be deemed to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee "Confidential Information" for purposes of the Preferred Shares with reciprocal Confidentiality Agreements, dated September 28, 1998 between Company and FreshPoint, Inc., a liquidation preference subsidiary of no less than an amount equal to ten percent Holdings (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies."Confidentiality Agreements"). 60
Appears in 1 contract
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall applyFrom the date hereof through the Closing Date, (x) with respect subject to Section 6.1(b), Buyer will be entitled, through its Representatives, to have reasonable access to the Investoroffices, from the Signing Date until the date when the Investor or one employees and properties of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries Sellers Related to permit, the Investor, the Inspector General of the Treasury Business for any reasonable purpose related to this Agreement and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all transactions contemplated hereby. Any such access will be conducted upon reasonable notice, provided, that:
(A) any examinations advance notice and discussions pursuant under reasonable circumstances and will be subject to this Section 4.1(c)(i) shall be conducted during normal business hours restrictions under COVID-19 Measures and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient applicable Law. Sellers will direct and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use their commercially reasonable efforts to make appropriate substitute disclosure arrangements cause their Representatives to cooperate with Buyer and Buyer’s Representatives in connection with such access, and Buyer and its Representatives will cooperate with Sellers and its Representatives; provided that (i) any such access shall be conducted, at Buyer’s expense, in accordance with binding Contracts, applicable Law (including applicable privacy and competition laws), during normal business hours, under circumstances where the restrictions supervision of Sellers’ personnel, and in this clause such a manner as to not unreasonably interfere with the normal operations of the Business or of Sellers and their respective Affiliates and (B) apply);
(Cii) the obligations of the Recipient and the Recipient Subsidiaries foregoing shall not require Sellers to disclose information or materials (1) protected by attorney-client, attorney work product or other legally recognized privileges or immunity from disclosure, (2) the disclosure of which would violate any binding Contracts, applicable Laws or fiduciary duties, or (3) pertinent to any litigation in which Sellers or any of their Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are engaged (provided that, at Buyer’s reasonable request, the Parties shall take commercially reasonable efforts to implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the non-disclosure to the greatest extent reasonably possible, including by arrangement of appropriate clean room procedures, redaction of text from documents or entry into a customary joint defense agreement with respect to any information to be so provided).
(b) All information received pursuant to this Section 4.1(c)(iSection 6.1 shall be governed by the terms of the Confidentiality Agreement.
(c) For a period not to exceed five (5) years following the Closing, Buyer shall provide to Sellers and their Affiliates and Representatives (at Sellers’ expense) reasonable access to, including the right to make copies of, all books and records included in the Transferred Assets and Assumed Liabilities relating to periods prior to the Inspector General Closing to the extent necessary to permit Sellers to prepare financial reports, Tax returns, any Tax audits, or the defense or prosecution of any Action; provided that (i) any such access shall be conducted in accordance with binding Contracts and applicable Law (including applicable privacy and competition laws), during normal business hours, under the supervision of Sellers’ personnel, and in such a manner as to not unreasonably interfere with the normal operations of the Treasury Business or of Buyer and its Affiliates and (ii) the Comptroller General foregoing shall not require Buyer to disclose information or materials (1) protected by attorney-client, attorney work product or other legally recognized privileges or immunity from disclosure, (2) the disclosure of which would violate any binding Contracts, applicable Laws or fiduciary duties, or (3) pertinent to any litigation in which Sellers or any of their Affiliates, on the United States one hand, and their respective agentsBuyer or any of its Affiliates, consultantson the other hand, contractors or advisors, shall are engaged. Any such access will also be conducted upon reasonable advance notice and under reasonable circumstances and will be subject to restrictions under COVID-19 Measures and applicable Law. Notwithstanding anything herein to the agreement by contrary, Buyer may destroy any such books and records, provided that Buyer shall notify Sellers in writing at least 30 days in advance of destroying any such books and records prior to the Inspector General five-year anniversary of the Treasury or Closing Date in order to provide Sellers the Comptroller General of the United States, as applicable, with respect opportunity to documents obtained under this Section 4.1(c)(i), to follow applicable law copy such books and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared records in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited this Section 6.1(c). Notwithstanding anything herein to the extent audited financial statements are available;
(B) as soon as available after contrary, Buyer acknowledges that Sellers have the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided right to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency retain originals or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information all books and records and other materials included in or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studiesTransferred Assets or Assumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sequential Brands Group, Inc.)
Access and Information. (a) From the date hereof until the Closing, subject to any applicable Laws, Seller and FTFC shall (i) The provisions afford Buyer and its representatives access, during regular business hours and upon reasonable advance notice, to the Applicable Employees and the assets, books and records of the Business (including payroll information and employee data), (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 in writing and (iii) instruct the Applicable Employees, and its counsel and financial advisors to cooperate with Buyer in its investigation of the Business, including instructing its accountants to give Buyer access to their work papers; provided, however, that in no event shall Buyer have access to any information that (x) based on advice of Seller’s counsel, could create any potential Liability under applicable Laws, including U.S. Antitrust Laws, or could destroy any legal privilege or (y) in the reasonable judgment of Seller, could (A) result in the disclosure of any trade secrets of third parties or (B) violate any obligation of Seller with respect to confidentiality so long as, with respect to confidentiality, Seller has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. All requests for information made pursuant to this Section 4.1(c)(i5.1(a) shall applybe directed to an executive officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.1(a) shall be governed by the terms of Section 5.10.
(b) Following the Closing, upon the request of another Party, each of Seller, FTFC, Buyer, the Companies and the Canadian Sub shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing, grant to a requesting Party and its representatives during regular business hours, the right, at the expense of such requesting Party, to inspect and copy the books, records and other documents in the granting Party’s possession pertaining to the operation of the Business prior to the Closing (xincluding books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records) with respect to Seller and FTFC, for purposes of preparing the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares requesting Party’s Tax Returns and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United StatesCompanies, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, for any Preferred Shares, only with respect purpose reasonably related to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersTransaction; provided, however thathowever, notwithstanding clauses (A)-(E) that the requesting Party agrees such access will give due regard to minimizing interference with the operations, activities and Employees of this Section 4.1(c)(ii)the granting Party. In no event shall Seller, this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports FTFC or Buyer have access to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee consolidated federal, state or assignee local Tax Returns of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Sharesother Parties.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) ▇▇▇▇▇ shall, and shall cause its subsidiaries to, (i) The afford Carpatsky and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Carpatsky Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, agents, properties, offices and other facilities of ▇▇▇▇▇ and its subsidiaries and to the books and records thereof and (ii) furnish promptly to Carpatsky and the Carpatsky Representatives such information concerning the business, properties, contracts, records and personnel of ▇▇▇▇▇ and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by Carpatsky or such Representatives.
(b) Carpatsky shall, and shall cause its subsidiaries to, (i) afford to ▇▇▇▇▇ and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "▇▇▇▇▇ Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of Carpatsky and its subsidiaries and to the books and records thereof and (ii) furnish promptly to ▇▇▇▇▇ and ▇▇▇▇▇ Representatives such information concerning the business, properties, contracts, records and personnel of Carpatsky and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by ▇▇▇▇▇ or such Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i5.05, neither party shall be required to grant access or furnish information to the other party to the extent that such access to or the furnishing of such information is prohibited by Law. No investigation by the parties hereto made heretofore or hereafter shall affect the representations and warranties of the parties which are herein contained and each such representation and warranty shall survive such investigation.
(d) The information received pursuant to Section 5.05(a) and (b) by either party hereto (the "Recipient") shall apply, (x) with respect be deemed to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares be "confidential information" and (y) with respect may not be publically disclosed except pursuant to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined express written permission by the Investor to be relevant to other party hereto (the Preferred Shares, "Informant") or valid court or investigative order unless such information is already in the Recipient will permit, and shall cause each of public domain or in the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts possession of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation and was not obtained in breach of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement duty owed by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryInformant.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Pease Oil & Gas Co /Co/)
Access and Information. (i) The provisions Subject to, and in accordance with, the terms and conditions of this Section 4.1(c)(i) shall apply, (x) with respect to the InvestorConfidentiality Agreements, from the Signing Date date hereof until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred SharesClosing, the Recipient will permitCompany shall, and shall cause each the Subsidiary to, make full disclosure to the Buyer and its Permitted Representatives (as defined in the Confidentiality Agreements) of all the Recipient’s Subsidiaries information that is reasonably requested by the Buyer with regard to permitthe Transferred Companies. Notwithstanding the preceding sentence, nothing in this Agreement or any other agreement between the InvestorParties shall obligate the Company or the Subsidiary to disclose to the Buyer, or its agents or representatives, prior to the Inspector General of Closing, any information concerning (a) the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other informationMutual Litigation, (yb) make copies thereof and source code for any software owned or used by the Transferred Companies, or (zc) discuss the affairsnames or other identifying information (email, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officersphone, mailing or IP address, etc.) of any customers (except in the Recipient and the Recipient Subsidiaries, all case of a random sampling of an agreed upon reasonable notice, provided, that:
(A) any examinations and discussions number of customers performed by an independent third party agent of Buyer for verification purposes only). No investigation pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with alter any representation or warranty given hereunder by the conduct of Sellers or the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any Company. All requests for information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information made pursuant to this Section 4.1(c)(i) shall be directed to the Inspector General of the Treasury Sellers’ Representative or the Comptroller General of the United States and their respective agents, consultants, contractors such Person or advisors, shall Persons as may be subject to the agreement designated by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential Sellers’ Representative. All information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions received pursuant to this Section 4.1(c)(i) mayshall be governed by Section 6.10 and the Confidentiality Agreements, at together with any other agreement entered into regarding the Investor’s option, be conducted on site at any office confidentiality and/or dissemination of information of the Recipient Company to the Buyer or to its counsel. Notwithstanding any provision to the contrary, if, in the opinion of counsel to the Company, it may be potentially harmful to disclose certain documents or information to the Buyer, having regards to the competitive and/or litigation position of the Company in the event the Closing is not consummated pursuant to this Agreement, then such documents or information shall not be provided to the Buyer, the Parent or any Recipient Subsidiaryof their Representatives.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (J2 Global Communications Inc)
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall applyUntil the Closing, (x) with respect subject only to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares applicable rules and (y) with respect to the Inspector General regulations of the Treasury FCC, Osbo▇▇ ▇▇▇ll afford to Mergeco and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns representatives (including all schedules accountants and attachments thereto)counsel) full access, data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours hours, upon reasonable notice and in such manner as will not to unreasonably interfere unreasonably with the conduct of the business of Osbo▇▇ ▇▇ its subsidiaries, to all properties, books, records and returns of Osbo▇▇ ▇▇▇ its subsidiaries and all other information with respect to its business, together with the Recipient opportunity to make copies of such books, records and other documents and to discuss the Recipient Subsidiaries;
business of Osbo▇▇ ▇▇▇ its subsidiaries with such corporate officers, station managerial personnel (B) neither including the Recipient nor any Recipient Subsidiary General Manager, Station Manager, General Sales Manager, Programming Director, Business Manager and Traffic Manager, or persons performing comparable duties, of each Station), accountants, consultants and counsel for Osbo▇▇ ▇▇ Mergeco deems reasonably necessary or appropriate for the purposes of familiarizing itself with Osbo▇▇ ▇▇▇ the Stations, including, without limitation, the right to visit each Station at least monthly; provided that such Station visits shall be required by this Section 4.1(c)(ischeduled at least five business days in advance and shall be conducted in a manner intended to minimize the disruption to the operations of the Stations. In furtherance of the foregoing, Osbo▇▇ ▇▇▇ll authorize and instruct Ernst & Young LLP to meet with Mergeco and its representatives, including its independent public accountants, to discuss the business and accounts of Osbo▇▇ ▇▇▇ to make available (with the opportunity to make copies) to disclose any information Mergeco and its representatives, including its independent public accountants, all the work papers of Ernst & Young LLP related to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations their audit of the Recipient consolidated financial statements and the Recipient Subsidiaries to disclose tax returns of Osbo▇▇. ▇ll information provided pursuant to this Section 4.1(c)(i) Agreement shall remain subject in all respects to the Inspector General Confidentiality Agreement (herein so called) dated May 30, 1996 between Hicks, Muse, Tate & ▇urs▇ ▇▇▇orporated and Osbo▇▇ ▇▇▇il such time as the transactions contemplated by this Agreement have been consummated. Osbo▇▇ ▇▇▇ves any provisions in the Confidentiality Agreement that would otherwise prohibit the execution of this Agreement and the consummation of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiarytransactions contemplated hereby.
(iib) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available Within 30 days after the end of each fiscal year calendar month (other than in the case of the RecipientDecember 1996, and in any event then within one hundred twenty (120) 90 days thereafter, a consolidated balance sheet of the Recipient as of after the end of such fiscal yearmonth), Osbo▇▇ ▇▇▇ll deliver to Mergeco, for each of the Stations, and consolidated for Osbo▇▇ ▇▇ a whole, monthly operating statements of income, retained earnings and cash flows of (in a form consistent with the Recipient for such year, in each case monthly operating statements previously supplied to Mergeco) prepared in accordance with GAAP the ordinary course of business for internal purposes, including comparisons to comparable prior year periods and setting forth in each case in comparative form the figures for the previous fiscal current year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available budget. Further, within 45 days after the end of the firsteach calendar quarter, second and third quarterly periods in Osbo▇▇ ▇▇▇ll deliver to Mergeco, for each fiscal year of the RecipientStations, a copy quarterly statements prepared in the ordinary course for internal purposes containing the dollar amount of any quarterly reports provided all trade and barter agreements of each Station. Osbo▇▇ ▇▇▇ll deliver to Mergeco the rating books and such other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controlsratings information subscribed to by Osbo▇▇ ▇▇▇luding, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effectivewithout limitation, any amendments to the CharterArbitrends, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States Accuratings or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such written information as the Investor may request from time to time related to the study under Section 525 of Division N reflective of the Consolidated Appropriations Act, 2021 and related studies.quantitative or qualitative nature of the audiences of the Stations for each of the Stations upon receipt of the same by the corporate officers of Osbo▇▇. ▇sbo▇▇ ▇▇▇ll
Appears in 1 contract
Access and Information. (ia) The provisions From and after the Closing Date for a period of this Section 4.1(c)(ithree (3) years and thereafter with Sellers' consent, which consent shall applynot be unreasonably withheld, Sellers shall, and shall cause their officers, directors, employees and agents to, afford to Purchasers and their officers, directors, employees, counsel, accountants, advisors, representatives and agents reasonable access, during regular business hours and upon reasonable advance notice, to the officers, employees, agents, properties, offices and other facilities, and to the books and records (including, without limitation, tax returns and work papers of Sellers' independent auditors) and Commitments of Sellers, and shall furnish Purchasers and such others all financial, operating, technical and other data and information which Purchasers, through its officers, employees or agents, may from time to time reasonably request (in each case, to the extent available to Sellers and related to the Health Centers and the business of PGPA); provided, that (x) the foregoing shall be done in a manner so as not to unreasonably interfere with respect to the Investornormal conduct of the Sellers' business, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect at Sellers' request, Purchasers and such representatives shall execute a reasonable confidentiality agreement relating to the Inspector General of the Treasury and the Comptroller General of the United States, from non-public information received in connection therewith.
(b) From and after the Signing Closing Date butfor a period of three (3) years and thereafter with Purchasers' consent, after the date when the Investor or one of its Affiliates no longer ownswhich consent shall not be unreasonably withheld, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitPurchasers shall, and shall cause each of the Recipient’s Subsidiaries their officers, directors, employees and agents to, afford to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States Sellers and their respective agentsofficers, consultantsdirectors, contractors employees, counsel, accountants, advisors, representatives and advisors to (x) examine any booksagents reasonable access, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal regular business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially upon reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be deliveredadvance notice, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipientofficers, employees, agents, properties, offices and other facilities, and in any event within one hundred twenty to the books and records (120including, without limitation, tax returns and work papers of Purchasers' independent auditors) days thereafter, a consolidated balance sheet and Commitments of the Recipient as of the end of such fiscal yearPurchasers, and consolidated statements of incomeshall furnish Sellers and such others all financial, retained earnings operating, technical and cash flows of the Recipient for such yearother data and information which Sellers, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the firstthrough its officers, second and third quarterly periods in each fiscal year of the Recipientemployees or agents, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time reasonably request, in each case, to the extent available to Purchasers and related to the study under Section 525 Health Centers and the business of Division N PGPA, and in each case solely to the extent relevant and reasonably necessary to the (i) preparation of tax returns and responses to tax audits, (ii) defense or prosecution of any litigation, tax or other claim, (iii) inquiries from any Governmental Body, or (iv) any other reasonable purpose related to the matters referred to it clauses (i), (ii) and (iii) above; provided, that (x) the foregoing shall be done in a manner so as not to unreasonably interfere with the normal conduct of the Consolidated Appropriations ActPurchasers' business, 2021 and related studies(y) at Purchasers' request, Sellers and such representatives shall execute a reasonable confidentiality agreement relating to non-public information received in connection therewith.
Appears in 1 contract
Sources: Health Center Purchase Agreement (PHP Healthcare Corp)
Access and Information. (a) From the date hereof until the Closing, subject to reasonable rules and regulations of Seller and any applicable Legal Requirements, Seller shall (i) The provisions of this Section 4.1(c)(i) shall applyafford Buyer and its Representatives access, during regular business hours and upon reasonable advance notice, to the Employees, the Assets and the Books and Records, (xii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the InvestorAssets, Assumed Liabilities or the Product Line as Buyer from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares time to time reasonably requests and (yiii) instruct the Employees and its Representatives to reasonably cooperate with respect to the Inspector General Buyer in its investigation of the Treasury Assets, Assumed Liabilities and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred SharesProduct Line. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions No investigation pursuant to this Section 4.1(c)(i7.4(a) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor alter any Recipient Subsidiary shall be required representation or warranty given hereunder by this Section 4.1(c)(i) to disclose any Seller. All requests for information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information made pursuant to this Section 4.1(c)(i7.4(a) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject directed to the agreement an executive officer of Seller or such Person or Persons as may be designated by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential Seller. All information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions received pursuant to this Section 4.1(c)(i7.4(a) mayshall be governed by the terms of the Confidentiality Agreement.
(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, grant to the other party and its Representatives during regular business hours and subject to reasonable rules and regulations of the granting party, the right, at the Investor’s option, be conducted on site at any office expense of the Recipient or any Recipient Subsidiary.
(ii) Subject non-granting party, to inspect and copy the books, records and other documents in the granting party’s possession pertaining to the assignment operation of the rights under this Section 4.1(c)(ii) pursuant Assets or the Product Line prior to Section 4.1(c)(iiithe Closing (including books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records), from . In no event shall either party have access to legally privileged information of the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliverother party, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year consolidated federal, state or local Tax Returns of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investorparty.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) From the date of this Agreement until the Effective Time, except as otherwise prohibited by Law or Contract or as would potentially result in the loss of the attorney-client privilege or trade secrets, the Company shall (i) The provisions afford Parent and its representatives (including Parent’s outside advisors) reasonable access, during regular business hours, to its and its Subsidiaries’ then-current Employees (subject to obtaining the prior approval (which shall not be unreasonably withheld) of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or R▇▇▇▇▇ ▇▇▇▇▇), assets, Liabilities, properties, and Books and Records and (ii) furnish to Parent and its representatives such additional financial and operating data and other information (including copies of filings with Governmental Entities) as is then otherwise readily available regarding the assets, Liabilities, properties and businesses of the Company and its Subsidiaries as Parent and its representatives may from time to time reasonably request. Promptly (and in any event no later than on the first Business Day) after the date of this Agreement, the Company shall provide to Parent a list of (i) each Producer that has placed any Insurance Contract of an Insurance Company from January 1, 2009 through June 30, 2010 and (ii) each claims adjuster that has adjusted any claims on behalf of an Insurance Company from January 1, 2009 through June 30, 2010, including both employees of the Company and its Subsidiaries and independent contractors. All information received pursuant to this Section 4.1(c)(i6.1 shall be governed by the terms of the Confidentiality Agreement. During the period from the date of this Agreement through the Effective Time, the Company shall, to the extent permitted under applicable Law, consult in good faith (which shall not require consent) shall apply, (x) with representatives of Parent with respect to significant developments, transactions and decisions involving the Investor, from operations or affairs of the Signing Date until the date when the Investor or one of Company and its Affiliates no longer owns, directly or indirectly, any Preferred Shares and Subsidiaries.
(yb) with respect Prior to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred SharesClosing Date, the Recipient will permitCompany shall, and shall cause each its Subsidiaries to, to the extent permitted under applicable Law, reasonably cooperate with Parent with respect to transition matters, including to: (i) provide reasonable access to the Employees (subject to obtaining the prior approval (which shall not be unreasonably withheld) of M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or R▇▇▇▇▇ ▇▇▇▇▇) in respect of transition planning; (ii) designate certain of their employees to serve as members of a joint Company/Parent transition team and cause such individuals to devote reasonable time to transition matters (it being agreed that the Recipient’s Company and its Subsidiaries shall not be required to permit, appoint more than ten (10) employees to such team); (iii) transmit on behalf of Parent reasonable communications to Producers and claims adjusters doing business with the Investor, Insurance Companies in a form mutually agreed by the Inspector General Company and Parent for purposes of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof providing business continuity; and (ziv) discuss promptly provide Parent with copies of all correspondence or written communication among the affairs, finances and accounts Company or any of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient its Subsidiaries, all upon reasonable noticeon the one hand, providedand A.M. Best, that:
(A) any examinations and discussions pursuant Standard & Poor’s or M▇▇▇▇’▇ Investors Service, Inc., on the other hand, that relates to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient Company or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiarySubsidiaries.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Merger Agreement (ACE LTD)
Access and Information. (a) From the date hereof until the Closing Date (or earlier termination of this Agreement in accordance with the terms hereof), subject to any applicable Law and subject to any applicable privileges (including attorney-client privilege), trade secrets and contractual confidentiality obligations, upon reasonable prior notice, Vendor shall use its commercially reasonable efforts to: (i) The provisions afford Buyer and its Representatives reasonable access, during normal business hours, to the books, data, files, information and records, offices and properties of the Conveyed Entities, Vendor (to the extent relating to the ENSTAR Assets) and APC (to the extent relating to the APC Assets) (or, upon completion of the Pre-Closing Reorganization, NewCo, New APC, New ENSTAR or any Conveyed Subsidiary Entity); (ii) furnish to Buyer such additional financial and operational data and other information regarding the Conveyed Entities and the Conveyed Entity Assets as Buyer may from time to time reasonably request; and (iii) make available to Buyer and its Affiliates the employees of Vendor and its Affiliates (to the extent related to the Business) as are reasonably requested by Buyer. In no event shall the auditors and independent accountants of Vendor or any of its Affiliates (including the Conveyed Subsidiary Entities and, once formed, NewCo, New APC and New ENSTAR) 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. Notwithstanding any other provision of this Section 4.1(c)(i) shall apply8.1(a), (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to Vendor may require that competitively sensitive information determined by the Investor otherwise required to be relevant provided to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions Buyer pursuant to this Section 4.1(c)(i8.1(a) shall be conducted during normal business hours provided only to external legal counsel and in such manner as not to interfere unreasonably with the conduct external experts of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information Buyer. Nothing discovered pursuant to this Section 4.1(c)(i8.1 shall limit any claims by Buyer for Fraud of Vendor or any claims that any conditions set forth in Section 9.1 have not been satisfied.
(b) All requests for access or information made pursuant to Section 8.1(a) or Section 8.7(b) shall be directed to such Person or Persons as may be designated by Vendor (including, in the Inspector General case of Section 8.7(b), the Transition Committee), and Buyer shall not directly or indirectly contact any Representative of Vendor or its Affiliates (including the Conveyed Subsidiary Entities and, once formed, NewCo, New APC and New ENSTAR) without the prior approval of such designated Person or Persons. Any such access or provision of information shall be supervised by such Persons as may be designated by Vendor and be conducted in such a manner so as not to unreasonably interfere with any of the Treasury business or operations of Vendor, APC and the Comptroller General Conveyed Entities and shall not contravene any applicable Law. Buyer further agrees to comply fully with all rules, regulations and instructions issued to Buyer by Vendor, APC and the Conveyed Entities in respect of Buyer’s or its Representatives’ actions while upon, entering or leaving any properties of Vendor, APC and the United States Conveyed Entities.
(c) Buyer agrees to be liable to and to indemnify, defend and hold harmless Vendor and its Affiliates (including the Conveyed Entities) and their respective agentspartners, consultantsdirectors, contractors officers and employees from and against any and all Losses, including any and all claims and causes of action for personal injury, death or advisorsproperty damage, shall be subject occurring as a result of Buyer’s or any of its Representatives’ access to the agreement by the Inspector General books and records, offices and properties of the Treasury or the Comptroller General of the United StatesVendor, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (APC and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryConveyed Entities.
(iid) Subject With respect to the assignment each material Business Benefit Plan and material Business Benefit Agreement that has not been made available to Buyer as of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii)Signing Date, from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available practicable after the end of each fiscal year of the RecipientSigning Date, and in any event within one hundred twenty no later than ten (12010) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available Business Days after the end of the firstSigning Date, second Vendor shall provide to Buyer complete and third quarterly periods in accurate copies of: (i) such Business Benefit Plan or Business Benefit Agreement; (ii) each fiscal year of the Recipienttrust, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controlsinsurance, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws annuity or other organizational documents of funding Contract related thereto; (iii) the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited two most recent financial statements and shall not require actuarial or other valuation reports prepared with respect thereto, if applicable; and (iv) copies of all policies pertaining to fiduciary liability insurance covering the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to fiduciaries for each Business Benefit Plan listed on Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%4.19(a) of the initial aggregate liquidation preference of the Preferred SharesVendor Disclosure Schedule.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) From the date hereof until the Closing, subject to Section 7.1 and to reasonable rules, regulations and policies of Seller and any applicable Laws, Seller shall (i) The provisions afford Purchaser and its representatives reasonable access, during regular business hours and upon reasonable advance notice to Seller, to the PEP Companies and to the employees specified by Seller in connection with each such visit; provided, however, access to such employees will only be available upon reasonable notice to Seller to the attention of this Section 4.1(c)(i▇▇▇▇ ▇▇▇▇▇ and at such times and places as ▇▇▇▇ ▇▇▇▇▇ shall determine in his reasonable discretion. Any access shall be conducted (A) shall applyunder the supervision of Seller’s or its Affiliate’s personnel, (xB) subject to all of the standard protocols and procedures of the PEP Companies, including the requirement that visitors be escorted at all times, (C) subject to any additional procedures required by any landlord, and (D) in such a manner as does not unreasonably interfere with the normal operations of the PEP Companies. All such access shall be at the risk of Purchaser and its representatives and agents, and in connection therewith, Purchaser hereby agrees to indemnify and hold harmless Seller, its Affiliates and their respective officers, directors, members, agents, representatives, successors and assigns with respect to any Damages resulting from or arising out of such access.
(b) Following the InvestorClosing and until any applicable statute of limitations (including periods of waiver) has expired, from Purchaser agrees to retain all Books and Records in existence on the Signing Closing Date until and to grant to Seller and its representatives during regular business hours and upon reasonable advance notice to Purchaser, the date when right, at the Investor or one expense of its Affiliates no longer ownsSeller, directly or indirectly, any Preferred Shares (i) to inspect and copy the Books and Records and (yii) with respect to have personnel of Purchaser made available to them or to otherwise cooperate to the Inspector General of the Treasury and the Comptroller General of the United Statesextent reasonably requested by Seller, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only including in connection with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) preparing and filing Tax returns and/or any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
Tax inquiry, audit, investigation or dispute, or (B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law litigation, audit, dispute, claim or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiaryinvestigation.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nn Inc)
Access and Information. (a) Upon reasonable notice and subject to applicable laws relating to the exchange of information, each of Purchaser and the Company, for purposes of verifying the representations and warranties of the other and preparing for the Merger and other matters contemplated by this Agreement, shall (and shall cause its respective Subsidiaries to) afford to the other party and its representatives (including, without limitation, officers and employees of the other party and its Affiliates and counsel, accountants and other professionals retained by the other party) such reasonable access throughout the period before the Effective Time to the books, records, contracts, properties, personnel, information technology and to such other information relating to the other party and its Subsidiaries as may be reasonably requested, except where such materials (i) The provisions constitute attorney-client privileged communications or information, (ii) relate to pending or threatened litigation or investigations if, in the opinion of counsel, the presence of such designees would or might jeopardize any privilege relating to, the matters being discussed or (iii) constitute confidential supervisory information if, in the opinion of counsel, disclosure is prohibited by applicable laws; provided, however, that no investigation pursuant to this Section 5.3 shall affect or be deemed to modify any representation or warranty made in this Agreement. Neither party nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of its customers, or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into before the date of this Section 4.1(c)(iAgreement. The parties will endeavor to make appropriate and reasonable substitute disclosure arrangements, consistent with law, in the case of circumstances where the restrictions in clauses (ii) or (iii) above.
(b) From the date hereof until the Effective Time, the Company shall, and shall applycause its respective Subsidiaries to, promptly provide to Purchaser (i) a copy of each report filed with a Governmental Entity (other than publicly available periodic reports filed with the SEC), (ii) a copy of each periodic report provided to its senior management and all materials relating to its business or operations furnished to its Board of Directors, (iii) a copy of each press release made available to the public and (iv) all other information concerning its business, properties and personnel as may be reasonably requested; provided that Purchaser shall not be entitled to receive reports or other documents relating to (w) solely in the case of clause (ii), matters involving this Agreement, (x) with respect to pending or threatened litigation or investigations if, in the Investoropinion of counsel, from the Signing Date until disclosure of such information would or might jeopardize any privilege relating to, the date when the Investor matters being discussed, or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) confidential supervisory information if, in the opinion of counsel, disclosure is prohibited by applicable laws. The Company will endeavor to make appropriate and reasonable substitute disclosure arrangements, consistent with respect to law, in the Inspector General case of circumstances where the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor restrictions in clause (w) or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will (x) apply.
(c) The Company shall permit, and shall cause each of the Recipient’s its Subsidiaries to permit, Purchaser and/or a cybersecurity consulting firm selected by Purchaser, at the Investorsole expense of Purchaser, to conduct such IT security audits, studies and tests on the Inspector General Company IT Systems.
(d) The Company and Purchaser will not, and will cause its respective representatives not to, use any information and documents obtained in the course of the Treasury and the Comptroller General consideration of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts consummation of the Recipient and the Recipient Subsidiaries with the personnel (transactions contemplated by this Agreement, including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions information obtained pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not 5.3, for any purpose unrelated to interfere unreasonably with the conduct consummation of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required transactions contemplated by this Section 4.1(c)(i) to disclose any Agreement and will hold such information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the documents in confidence and treat such information and documents as secret and confidential and will use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially all reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where safeguard the restrictions confidentiality of such information and documents in this clause (B) apply);
(C) accordance with the obligations provisions of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryConfidentiality Agreement.
(iie) Subject From and after the date hereof, representatives of Purchaser and the Company shall meet on a regular basis to discuss and plan for the assignment Closing and the conversion of the rights under this Section 4.1(c)(ii) pursuant Company’s and its Subsidiaries’ data processing and related electronic informational systems to Section 4.1(c)(iii), from those used by Purchaser and its Subsidiaries with the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) goal of conducting such conversion as soon as available after practicable following the consummation of the Bank Merger.
(f) Within fifteen (15) Business Days of the end of each fiscal year calendar month, the Company shall provide Purchaser with an updated list of the Recipient, and Loans described in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the InvestorSection 3.2(w)(vi));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iiig) The Investor’s information rights regarding the Company and its Subsidiaries to be supplied by the Company for inclusion in the Registration Statement, any filings or approvals under applicable state securities laws, or any filing pursuant to Section 4.1(c)(ii) and Rule 165 or Rule 425 under the Investor’s right Securities Act or Rule 14a-12 under the Exchange Act will not contain any untrue statement of a material fact or omit to receive certifications from state any material fact required to be stated therein or necessary in order to make the Recipient pursuant statements therein, in light of the circumstances under which they are made, not misleading. The information supplied, or to Section 4.1(d)(i) may be assigned supplied, by the Investor Company for inclusion in applications to a transferee Governmental Entities to obtain all permits, consents, approvals and authorizations necessary or assignee of advisable to consummate the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Sharestransactions contemplated by this Agreement shall be accurate in all material respects.
(ivh) Nothing The information regarding Purchaser and its Subsidiaries to be supplied by Purchaser for inclusion in the Registration Statement, any filings or approvals under applicable state securities laws, or any filing pursuant to Rule 165 or Rule 425 under the Securities Act or Rule 14a-12 under the Exchange Act will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Proxy Statement-Prospectus (except for such portions thereof supplied by the Company or any of its Subsidiaries) will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder. The information supplied, or to be supplied, by Purchaser for inclusion in applications to Governmental Entities to obtain all permits, consents, approvals and authorizations necessary or advisable to consummate the transactions contemplated by this Section Agreement shall be construed accurate in all material respects. The Registration Statement will comply as to limit form in all material respects with the authority that the Inspector General provisions of the Treasury, Securities Act and the Comptroller General of the United States or any other applicable Governmental Entity has under lawrules and regulations thereunder.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Merger Agreement (First Community Bankshares Inc /Va/)
Access and Information. Except as otherwise provided pursuant to Section 7.5 (iTax Matters) The provisions of this Section 4.1(c)(i) shall apply, (x) hereunder with respect to the Investor, Tax matters and Tax records:
(a) The Company agrees that from the Signing Date Closing and until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General seventh anniversary of the Treasury and the Comptroller General of the United StatesClosing, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will it shall permit, and shall cause each of the Recipient’s Subsidiaries to permit, at no cost to the Investor, the Inspector General of the Treasury Sellers and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct without disruption of the business of the Recipient Investors, the Company or any of their respective Affiliates, the Sellers and their respective counsel, accountants and other authorized representatives to have reasonable access during normal business hours to the officers, directors, employees, accountants and other advisors and agents, properties, books, records and contracts of the Company, the Subsidiaries and the Recipient Subsidiaries;
Business, and the right (B) neither at the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(ireasonable expense of the Sellers) to disclose any information make copies and extracts from such books, records and contracts, in each case to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating necessary to facilitate the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation resolution of any agreement claims made by or against or incurred by the Sellers, other than any such claim with respect to which the Recipient Investors or the Company reasonably determines that the interests of the Sellers and the Investors or the Company are adverse. Notwithstanding the foregoing, neither the Investor nor the Company shall be under any obligation to provide such access to the extent either of them reasonably determines that allowing such access would constitute a waiver of, or compromise any claim the Investors or the Company may have to, the protection of any attorney-client or other protective privilege.
(b) The Company agrees not to, and to cause its Affiliates not to, destroy at any time any files or records which are subject to Section 7.1(a) without giving prior written notice to the Sellers, and giving the Sellers 60 days following receipt of such notice to request in writing that specific records intended to be destroyed be delivered to either of the Sellers at such Seller's expense.
(c) During the Pre-Closing Period, the Sellers will afford to the Investors and their respective counsel, accountants and other authorized representatives, and the Investors shall afford the Sellers and their respective counsel, accountants and other authorized representatives, reasonable access to the officers, directors, employees, accountants and other advisors and agents, properties, books, records and contracts of the Business, on the one hand, or the Investors, on the other hand, provided in any event that such access does not interfere with normal business operations. The parties agree that the provisions of the Confidentiality Agreements shall continue in full force and effect following the execution and delivery of this Agreement, that the protections and restrictions on the use of information set forth in the Confidentiality Agreements shall apply to information provided by the Investors or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information their respective Affiliates pursuant to this Section 4.1(c)(i7.1(c) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents all information obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i7.1(c) may, at the Investor’s option, shall be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared kept confidential in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorConfidentiality Agreements.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) From the date hereof until the Effective Time, subject to applicable Legal Requirements, SPC shall, (i) The provisions afford Acquiror and its authorized representatives reasonable access, during regular business hours, upon reasonable advance notice, to the Employees and the properties and assets of this Section 4.1(c)(iSPC and the Radio Subsidiaries that are used in the conduct of the Business, (ii) shall applyprovide reasonable advance notice to Acquiror of, (x) senior management meetings in respect of the Business and (y) meetings conducted in respect of general management, budgets, forecasts, sales, employee retention and motivation and similar matters each as scheduled in the conduct of the Ordinary Course of Business, and, in respect of all such meetings, SPC shall permit Acquiror’s management personnel observation rights (without the authority to control or direct) at such meetings where and as held by SPC, either in person or by telephone conference call (at the election of Acquiror) if such meetings are in person, or by conference call if such meetings are telephonic, such observation rights also to include access to all work product and materials related thereto, (iii) furnish, or cause to be furnished, to Acquiror any financial and operating data and other available information with respect to the InvestorBusiness or in furtherance of the Transaction as Acquiror from time to time reasonably requests, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (yiv) instruct the Employees, and its counsel and financial advisors to cooperate with respect to the Inspector General Acquiror in its investigation of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, Business; provided, however, that in no event shall Acquiror have access to any information that:
, based on advice of SPC’s counsel, would (A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of (i) create liability under applicable Legal Requirements, including U.S. Antitrust Laws, or (ii) waive any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of material legal privilege to the Recipient or any Recipient Subsidiary (provided provided, that the Recipient in such latter event Acquiror and SPC shall use commercially reasonable efforts to make appropriate substitute cooperate to permit disclosure arrangements under circumstances where of such information in a manner consistent with the restrictions in this clause preservation of such legal privilege), (B) apply);
result in the disclosure of any trade secrets of third parties or (C) violate any obligation of SPC with respect to confidentiality so long as, with respect to confidentiality, to the obligations extent specifically requested by Acquiror, SPC has made commercially reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. Prior to the Closing Date, Acquiror and such third party consultants as may be engaged by Acquiror may, with reasonable prior notice, at mutually agreed times and at Acquiror’s own expense, physically inspect the properties and assets of SPC and the Radio Subsidiaries, including performing environmental audits; provided, however, that Acquiror shall not conduct any environmental sampling or invasive testing without the prior written consent of SPC and, in the case of any invasive testing, prior written consent of the Recipient and the Recipient Subsidiaries to disclose information applicable lessee, which consent shall not be unreasonably withheld. All requests made pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, 5.5 shall be subject directed to the agreement an executive officer of SPC or such Person or Persons as may be designated by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential SPC. All information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions received pursuant to this Section 4.1(c)(i) may5.5 shall, at prior to the Investor’s optionEffective Time, be conducted on site at any office governed by the terms of the Recipient or any Recipient SubsidiarySPC Confidentiality Agreement.
(iib) Subject to From and after the assignment of Effective Time, Acquiror and SPC shall give the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii)Stockholders’ Representative access, from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be deliveredupon reasonable advance notice and at reasonable times, to the Investor:
(A) books and records of SPC and its Subsidiaries as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures may be reasonably necessary for the previous fiscal year of the Recipient and which shall be audited Stockholders’ Representative to wind up its obligations with respect to the extent audited financial statements are available;
(B) as soon as available after the end of the firstExcluded Liabilities and Excluded Taxes. If Acquiror, second and third quarterly periods in each fiscal year of the Recipient, a copy of SPC or any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient Radio Subsidiary receives any assessment of the Recipient’s internal controlswritten notice from any Taxing Governmental Body proposing any adjustment to any Excluded Tax relating to SPC or any current or former Subsidiary, a copy of including Susquehanna Cable Co. and its direct and indirect Subsidiaries then Acquiror, SPC or any such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing Radio Subsidiary shall give prompt written notice thereof to the Investor));
(D) as soon as such items become effectiveStockholders’ Representative, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) which notice shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investordescribe in detail each proposed adjustment.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. 4.1.1 During the period commencing on the date hereof and ending on the earlier to occur of (a) the Closing and (b) the termination of this Agreement in accordance with Article 9 (the “Pre-Closing Period”), Seller shall afford Buyer and its Representatives reasonable access, upon reasonable prior notice during normal business hours, to the books and records of Seller and its Affiliates to the extent related to the Products, the Product Business, the Purchased Assets, Purchased Shares and the Assumed Liabilities (for clarity, excluding the Excluded Assets and Excluded Liabilities), as Buyer may reasonably request; provided, however, that (i) The provisions such access may be provided through an electronic data room; (ii) the reasonableness of this Section 4.1(c)(isuch access and requests shall be determined by taking into account, among other considerations, the competitive positions of the Parties; (iii) such access shall applybe subject to all applicable safety and security requirements communicated by Seller to Buyer and its Representative (including any requirements Seller and its Affiliates reasonably believe are necessary in light of the COVID-19 pandemic); and (iv) such access shall not unreasonably disrupt Seller’s ordinary course operations. During the Pre-Closing Period, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one Buyer hereby agrees that neither it nor any of its Affiliates no longer ownsor Representatives shall, directly or indirectly, contact any Preferred Shares and (y) licensor, competitor, supplier, distributor or customer of, or service provider to, Seller or any of Affiliates with respect to the Inspector General Products, the Product Business, the Purchased Assets, the Assumed Liabilities, the Purchased Subsidiary, this Agreement, the Ancillary Agreements or the Transactions, without the prior written consent of the Treasury Seller, which consent may be withheld in Seller’s sole and the Comptroller General absolute discretion. The auditors and independent accountants of the United States, from and after the Signing Date but, after the date when the Investor Seller or one any of its Affiliates no longer ownsshall not be obligated to make any work papers available to any Person under this Agreement, directly 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 indirectlyindependent accountants. If so reasonably requested by Seller, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitBuyer shall, and shall cause each its Affiliates (as applicable) to, enter into a customary joint defense agreement with Seller or its Affiliates with respect to any information to be provided to Buyer pursuant to this Section 4.1.1.
4.1.2 Buyer acknowledges and agrees that (a) certain records may contain information relating to Seller or its Affiliates, other than the Product Business (and, notwithstanding the inclusion of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, such information in such records, Tax returns (including all schedules and attachments theretosuch information shall not constitute Purchased Assets), data and other information, (y) make that Seller and its Affiliates may retain copies thereof and (zb) discuss prior to making any records available to Buyer, Seller or its Affiliates may redact any portions thereof that (i) do not relate to the affairsProduct Business, finances and accounts (ii) relate to any product or product candidate other than the Products or (iii) constitute Excluded Communications.
4.1.3 Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor any of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) its Affiliates shall be required to disclose any examinations and discussions information or provide any such access pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that 4.1 if such disclosure or access would reasonably be expected expected, in Seller’s reasonable judgment, to cause a violation (a) breach, or take any action that could violate or breach, any fiduciary duty, duty of confidentiality owed to any agreement Person (whether such duty arises contractually, statutorily or otherwise), Law (including any applicable Antitrust Law) or Contract with any other Person (other than any such Contract entered into by Seller or its Affiliates with the intent to which the Recipient subvert or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the circumvent Seller’s obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i4.1), to follow applicable law and regulation (and the applicable customary policies and proceduresb) regarding the dissemination of confidential materialswaive or jeopardize any established legal privileges, including redacting confidential the attorney-client privilege or (c) disclose any trade secrets or other sensitive information from (provided that, in any case, Seller and its Affiliates shall use their respective reasonable best efforts to obtain any required Consents and take such other reasonable action (such as the public version entry into a joint defense agreement or other arrangement to avoid loss of attorney-client privilege) to enable Seller to satisfy its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights obligations under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii4.1), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Bausch & Lomb Corp)
Access and Information. (a) Purchaser shall: (i) The afford Seller and its managers, members, officers, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the "Seller Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, directors, employees, agents, properties, offices, and other facilities of Purchaser (including any subsidiary) and to the books and records thereof; and (ii) furnish promptly to Seller and Seller Representatives such information concerning the business, properties, contracts, records, and personnel of Purchaser (including financial, operating, and other data and information) as may be reasonably requested, from time to time, by Seller and Seller Representatives.
(b) Seller shall: (i) afford to Purchaser and its officers, directors, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the "Purchaser Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the managers, members, officers, employees, accountants, agents, properties, offices, and other facilities of Seller and to the books and records thereof; and (ii) furnish promptly to Purchaser and the Purchaser Representatives such information concerning the business, properties, contracts, records, and personnel of Seller (including financial, operating, and other data and information) as may be reasonably requested, from time to time, by Purchaser and the Purchaser Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) section, no Party shall apply, (x) with respect be required to grant access or furnish information to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect other Party to the Inspector General extent that such access to or the furnishing of such information is prohibited by Applicable Law. No investigation by the Parties made heretofore or hereafter shall affect the representations and warranties of the Treasury Parties that are herein contained, and each such representation and warranty shall survive such investigation.
(d) Each Party agrees that it will treat in confidence all documents, materials, and other confidential information that it shall have obtained regarding the Comptroller General other Party during the course of the United States, from and after negotiations leading to the Signing Date but, consummation of the transactions contemplated hereby (whether obtained before or after the date when of this APA), the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoinginvestigation provided for herein, and limited solely to information determined by the Investor to be relevant to the Preferred Sharespreparation of this APA and other related documents (collectively, the Recipient will permit, and "Confidential Information"). Such Confidential Information shall cause each of the Recipient’s Subsidiaries not be communicated to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment Person (other than assessments provided by the Appropriate Federal Banking Agency to such Party's respective counsel, accountants, financial advisers, or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(Dlenders) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports be used for any purpose to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee detriment of the Preferred Shares other Party. No Party shall use any Confidential Information in any manner whatsoever except solely for the purpose of evaluating a possible business relationship with a liquidation preference the other Party. No Party and no Seller Representative or Purchaser Representative will, during the term of no less than an amount equal to ten percent (10%) this APA or at any time during the two years thereafter, irrespective of the initial aggregate liquidation preference time, manner, or cause of termination of this APA, use, disclose, copy, or assist any other Person in the use, disclosure, or copying of any Confidential Information of the Preferred Sharesother Party.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoingterms of the Confidentiality Agreement, at all times during the period commencing upon the execution and limited solely delivery hereof by each of the parties hereto and terminating upon the earlier to information determined by occur of the Investor Closing or the termination of this Agreement pursuant to be and in accordance with the terms of Section 8.1 hereof, the Seller shall permit the Purchaser and its authorized agents and representatives to have reasonable access, upon reasonable notice and during normal business hours, to all Business Employees, assets and properties and all relevant books, records and documents of or relating to the Preferred SharesBusiness, the Recipient will permitPurchased Assets and the Assumed Liabilities, including the work papers of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (accountant of the Seller) relating to the Financial Statements, and shall cause each of furnish to the Recipient’s Subsidiaries Purchaser such information and data, financial records and other documents relating to permitthe Business, the Investor, the Inspector General of the Treasury Purchased Assets and the Comptroller General Assumed Liabilities as the Purchaser may reasonably request. Representatives of the United States and their respective agents, consultants, contractors and advisors Purchaser shall be entitled to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries hold one or more meetings with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all Business Employees in each jurisdiction upon reasonable noticenotice to Seller and to provide written materials to Business Employees to explain and answer questions about the conditions, providedpolicies and benefits of employment with Purchaser. Seller shall be entitled to have one or more representatives at any such meeting. The Seller shall permit the Purchaser and its agents and representatives reasonable access to the Seller's accountants, that:
(A) auditors and suppliers for reasonable consultation or verification of any examinations and discussions information obtained by the Purchaser during the course of any investigation conducted pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours 6.2, and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use all commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where cause such Persons to cooperate with the restrictions Purchaser and its agents and representatives in this clause such consultations and in verifying such information. The Seller shall deliver to the Purchaser (Bi) apply);
(C) the obligations unaudited monthly operating statements of the Recipient Stations within ten (10) calendar days after the end of each calendar month, (ii) unaudited annual financial statements of the Stations within seventy-five (75) days of the end of the fiscal year, and (iii) on a weekly basis, pacing reports for the Recipient Subsidiaries to disclose ensuing three month period, it being expressly understood and agreed that delivery of any financial information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement 6.2 by the Inspector General of the Treasury Seller or the Comptroller General of the United States▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, as applicable, to the Purchaser shall not constitute a representation or warranty as to the future financial performance of the Stations or the Business. Notwithstanding anything to the contrary contained in the Confidentiality Agreement, the Purchaser shall have the right to contact the executive officers of the Seller or the general manager, or other senior management personnel, of each of the Stations directly with respect to documents obtained under this Section 4.1(c)(i)any information provided, or to follow applicable law and regulation (and be provided, by the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions Seller pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary6.2.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Asset Purchase Agreement (Benedek Communications Corp)
Access and Information. (ia) The provisions Prior to the Closing Date, the Company will, and the Parent will cause the Company and each Subsidiary to, give Holdings (and any prospective lender considering providing financing in connection with the transactions contemplated hereby) and their authorized representatives (including accountants) access and the right to inspect at regular business hours, upon reasonable notice, all of the offices, equipment, properties and facilities of the Company and each Subsidiary, to all contracts, agreements, commitments, books and records of the Company and each Subsidiary and to the personnel and agents (including auditors) of the Company and each Subsidiary.
(b) Until the earlier of the Closing Date and the termination of this Agreement in accordance with Section 4.1(c)(i) shall apply7.1, (x) with respect to neither the InvestorCompany nor the Parent will, from and each will cause each Subsidiary and all of the Signing Date until the date when the Investor or one of its Affiliates no longer ownsforegoing' affiliates, employees, directors, representatives and agents not to, directly or indirectly, take any Preferred Shares and (y) action to solicit, encourage, initiate, furnish information relating to or participate in negotiations or discussions relating to, or enter into any agreement with respect to to, any merger, consolidation or other business combination involving the Inspector General Company or any Subsidiary or any sale of the Treasury and the Comptroller General capital stock (or other equity securities), assets or businesses of the United StatesCompany or any Subsidiary, from and after other than the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required transactions contemplated by this Section 4.1(c)(i) to disclose Agreement and any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations transactions relating to the use Non-Acquired Subsidiaries (any offers or disclosure inquiries pertaining to any of confidential supervisory information), or (y) that such disclosure would reasonably be expected the foregoing matters except for those referred into the last clause being referred to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) applyAgreement as an "Acquisition Transaction Proposal");
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however thatthat nothing contained in this Agreement shall prevent the Company or its Board of Directors, notwithstanding clauses directly or through representatives or agents acting on their behalf, from (A)-(Ei) furnishing information to, or entering into discussions or negotiations with, any person or entity in connection with an unsolicited bona fide written Acquisition Transaction Proposal by such person or entity, which Acquisition Transaction Proposal involves all or substantially all of the assets and business of the Company and the Subsidiaries or a sale of all or substantially all of the capital stock (or other equity securities) of the Company and the Subsidiaries (a "Qualified Proposal"), (ii) engaging in negotiations or discussions concerning, or provide any non-public information to any person or entity relating to, any Qualified Proposal, or (iii) prior to the Stockholders Meeting, terminating this Agreement in accordance with Section 7.1(e) and thereafter entering into any agreement with respect to, agreeing to, approving or recommending any Qualified Proposal, where (1) such Qualified Proposal would, if consummated, result in a transaction that would, in the reasonable good faith judgment of the Board of Directors of the Company, be a transaction that is more favorable to the Company's stockholders (any such more favorable Qualified Proposal being referred to in this Agreement as a "Superior Proposal"), (2) the failure to take such action would in the reasonable good faith judgment of the Board of Directors of the Company, after consultation with outside corporate counsel of the Company, be contrary to the fiduciary duties of the Board of Directors of the Company to the Company's stockholders under applicable law and (3) the Company has delivered to Holdings five business days prior written notice, including a copy of the definitive documents relating to such Superior Proposal and advising Holdings that it intends to take such action and in determining whether to enter into any agreement with respect to any Qualified Proposal, the Board of Directors of the Company has taken into account any changes to the financial terms of this Agreement proposed by Holdings in response to the notice provided in this Section 4.1(c)(ii), 5.2(b) (the covenant set forth in this Section 4.1(c)(ii5.2(b)(3) is the "Termination Covenant"). Upon execution of this Agreement, the Company and the Parent shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require cause the Recipient Subsidiaries, and each of the foregoings affiliates, employees, directors, representatives and agents, to submit Call Reports immediately cease any discussions or negotiations with any persons (other than the parties to this Agreement and their affiliates, representatives and advisors) initiated prior to the Investorexecution of this Agreement with respect to any Acquisition Transaction Proposal and shall request (or if any of them has contractual rights to do so, demand) the return of all documents, analyses, financial statements, projections and other data and information previously furnished to others in connection with any potential Acquisition Transaction Proposal.
(iiic) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned Company shall promptly notify Holdings of receipt by the Investor Company, the Parent or any Subsidiary (or their advisors) of any Acquisition Transaction Proposal or any request for nonpublic information in connection with any Acquisition Transaction Proposal or for access to a transferee the properties, books or assignee records of the Preferred Shares with a liquidation preference of no less than an amount equal Company or any Subsidiary by any person or entity that informs the Company that it is considering making, or has made, any Acquisition Transaction Proposal. Such notice to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section Holdings shall be construed to limit made orally and in writing and shall indicate in reasonable detail the authority that the Inspector General terms and conditions of the Treasurysuch proposal, the Comptroller General of the United States inquiry or any other applicable Governmental Entity has under lawcontact.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares Subordinated Debt and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred SharesSubordinated Debt, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred SharesSubordinated Debt. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred SharesSubordinated Debt, the Recipient will permit, and shall cause each of the Recipient’s Recipient Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or Treasury, the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have Subordinated Debt has been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one ninety (90one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders Equityholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders all Equityholders in the case of S Corps or Members in the Recipientcase of mutual institutions, copies of any information or documents documents, excluding, if the Recipient is a mutual institution, any general solicitations or advertisements for services and products, sent by the Recipient to its stockholdersMembers; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares Subordinated Debt with a liquidation preference face value of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred SharesPurchase Price.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Securities Purchase Agreement
Access and Information. (ia) The provisions During the period from the date of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date Agreement and continuing until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General earlier of the Treasury termination of this Agreement in accordance with Section 10.1 or the Closing (the “Interim Period”), subject to Section 8.13, each of Delta, Pubco and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitMerger Sub shall give, and shall cause each of the Recipient’s Subsidiaries its Representatives to permitgive, the InvestorKAVL and its Representatives, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon at reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted times during normal business hours and in upon reasonable intervals and notice, 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 information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or pertaining to the Delta Companies, Pubco or Merger Sub as KAVL or its Representatives may reasonably request regarding the Delta Companies, Pubco or Merger Sub 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 manner as not to interfere unreasonably with the conduct accountants, if any)) and cause each of the business Representatives of the Recipient the, Delta, Pubco and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary Merger Sub to reasonably cooperate with KAVL and its Representatives in their investigation, except that nothing herein shall be required by this Section 4.1(c)(i) require Delta, Pubco, Merger Sub or their Representatives to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws KAVL and regulations relating to the use or disclosure of confidential supervisory information), or (y) KAVL’s Representatives that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of legal privilege to the Recipient disclosing party or any Recipient Subsidiary (would constitute a violation of applicable Laws; provided that the Recipient Delta, Pubco, Merger and their Representatives shall use have used commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where provide such information without violation of applicable Law. KAVL and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the restrictions in this clause (B) apply);business or operations of the Delta Companies, Pubco or Merger Sub.
(Cb) During the obligations of the Recipient Interim Period, subject to Section 8.13, KAVL shall give, and the Recipient Subsidiaries shall cause its Representatives to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States give, Delta, Pubco, Merger Sub and their respective agentsRepresentatives, consultantsat reasonable times during normal business hours and upon reasonable intervals and notice, contractors 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 information (including Tax Returns, internal working papers, client files, client Contracts and director service agreements), of or advisors, shall be subject pertaining to the agreement by the Inspector General of the Treasury KAVL or the Comptroller General of the United Statesits Subsidiaries, as applicableDelta, with respect to documents obtained under this Section 4.1(c)(i)Pubco, to follow applicable law Merger Sub or their respective Representatives may reasonably request regarding KAVL, its Subsidiaries and regulation their respective businesses, assets, Liabilities, financial condition, prospects, operations, management, employees and other aspects (and the applicable customary policies and procedures) regarding the dissemination of confidential materialsincluding unaudited quarterly financial statements, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated quarterly balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipientincome statement, a copy of any quarterly reports provided to each material report, schedule and other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, document filed with or received by a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing Governmental Authority pursuant to the Investor));
requirements of applicable securities Laws, and independent public accountants’ work papers (D) as soon as such items become effective, any amendments subject to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States consent or any other applicable Governmental Entity has under law.
(vconditions required by such accountants, if any)) The Recipient and cause each of KAVL’s Representatives to reasonably cooperate with Delta, Pubco and Merger Sub and their respective Representatives in their investigation, except that nothing herein shall provide require either KAVL or its Subsidiaries to disclose any information to Delta, Pubco, Merger Sub, or their Representatives that would cause a risk of loss of legal privilege to the Investor all disclosing party or would constitute a violation of applicable Laws; provided that KAVL shall have used commercially reasonable efforts to provide such information without violation of applicable Law. Delta and its Representatives shall conduct any such activities in such a manner as not to unreasonably interfere with the Investor may request from time to time related to the study under Section 525 business or operations of Division N KAVL or any of the Consolidated Appropriations Act, 2021 and related studiesits Subsidiaries.
Appears in 1 contract
Sources: Merger and Share Exchange Agreement (Kaival Brands Innovations Group, Inc.)
Access and Information. (i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares Subordinated Debt and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred SharesSubordinated Debt, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred SharesSubordinated Debt. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred SharesSubordinated Debt, the Recipient will permit, and shall cause each of the Recipient’s Recipient Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or Treasury, the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have Subordinated Debt has been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders Equityholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders all Equityholders in the case of S Corps or Members in the Recipientcase of mutual institutions, copies of any information or documents documents, excluding, if the Recipient is a mutual institution, any general solicitations or advertisements for services and products, sent by the Recipient to its stockholdersMembers; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares Subordinated Debt with a liquidation preference face value of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred SharesPurchase Price.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Securities Purchase Agreement
Access and Information. (i) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoingapplicable Law, and limited solely to information determined by the Investor to be relevant to the Preferred Sharesupon reasonable advance notice, the Recipient will permitParent shall, and shall cause each of its Subsidiaries to, afford Purchaser and its Representatives reasonable access (other than with respect to information provided electronically, during normal business hours) throughout the Recipient’s Subsidiaries period prior to permitthe Closing, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any its books, papers, records, Tax returns (including all schedules work papers, personnel, offices, facilities and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information properties to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use Business, the Transferred Assets, the Transferred Subsidiaries, the Transferred Joint Ventures or disclosure of confidential supervisory information), or the Assumed Liabilities and (y) that such disclosure would reasonably be expected required to cause a violation prepare for the consummation of the Transactions, transition or integration planning or the operation of the Business following the Closing (including any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (Tax information in Parent’s possession); provided that the Recipient foregoing requirements shall use commercially reasonable efforts not require Parent (a) to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries permit any inspection, or to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General any information, that would violate any of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, its obligations with respect to documents obtained under this Section 4.1(c)(i)confidentiality, (b) to follow applicable law and regulation (and disclose any privileged information of the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version Parent or any of its reports and soliciting Subsidiaries, (c) to provide access to any Parent Consolidated Return (other than any such Tax Return relating solely to NewCo and/or any of its Subsidiaries, including, for the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation pro forma Tax Returns of any Transferred Subsidiary that would be included in any Parent Consolidated Return but which solely reflects the activities and operations of such Transferred Subsidiary or discussions pursuant to this Section 4.1(c)(iTransferred Joint Venture) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
other Tax information that does not relate solely to NewCo and the Transferred Subsidiaries or the Transferred Assets or (d) provide access to any physical locations or personnel to the extent reasonably necessary (i) to protect the health and safety of Parent and its Affiliates’ respective Representatives, or customers, lessors, suppliers, vendors or other commercial partners or (ii) Subject in order to comply with any applicable COVID-19 Measures; provided, further that, in the assignment event that Parent relies on clauses (a) through (d) of the rights foregoing proviso to limit access afforded to Purchaser under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii)5.2, from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
Parent shall (A) as soon as available after the end of each fiscal year of the Recipient, provide Purchaser and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance its Representatives with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited access to the maximum extent audited financial statements are available;
possible, (B) as soon as available after if requested by Purchaser, use its commercially reasonable efforts, with Purchaser’s cooperation, to implement an alternative means of providing Purchaser with the end of the firstaccess requested, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after in the Recipient receives any assessment case of clauses (a), (b) and (c), notify Purchaser in writing the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies nature of any information or documents sent withheld. All requests for information made pursuant to this Section 5.2 shall be directed to such Persons designated by Parent. All such information shall be governed by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) terms of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports Confidentiality Agreement prior to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) Closing and the Investor’s right to receive certifications NewCo Operating Agreement from and after the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred SharesClosing.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (ia) The provisions of this Section 4.1(c)(i) shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon Upon reasonable notice, each of ▇▇▇▇▇▇▇ and FNBO shall afford each of FSFG and First Savings and its representatives (including, without limitation, directors, officers and employees of each of FSFG and First Savings and its affiliates and counsel, accountants and other professionals retained by FSFG or First Savings) such reasonable access during normal business hours throughout the period before the Bank Merger Effective Time to the books, records (including, without limitation, tax returns and work papers of independent auditors), contracts, properties, personnel and to such other information relating to each of ▇▇▇▇▇▇▇ and FNBO as each of FSFG and First Savings may reasonably request; provided, that:
(A) any examinations and discussions however, that no investigation pursuant to this Section 4.1(c)(i) 5.3 shall affect or be conducted during normal business hours deemed to modify any representation or warranty made by ▇▇▇▇▇▇▇ and FNBO in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;this Agreement.
(Bb) From the date hereof until the Bank Merger Effective Time, each of ▇▇▇▇▇▇▇ and FNBO shall promptly provide to each of FSFG and First Savings with (i) a copy of each report filed with federal or state banking regulators, (ii) a copy of each periodic report to its senior management and all materials relating to its business or operations furnished to its board of directors, (iii) a copy of each press release made available to the public and (iv) all other information concerning its business, properties and personnel as each of FSFG and First Savings may reasonably request. Notwithstanding the foregoing, neither the Recipient ▇▇▇▇▇▇▇ nor any Recipient Subsidiary FNBO shall be required by this Section 4.1(c)(i) to provide access to or to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use where such access or disclosure would violate the rights of confidential supervisory such entity's customers, jeopardize the attorney-client privilege of the entity in possession or control of such information), or (y) that such disclosure would reasonably be expected to cause a violation contravene any law, rule, regulation, order, judgment, decree or binding agreement entered into before the date of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances where in which the restrictions in this clause (B) of the previous sentence apply);.
(Cc) the obligations Each of the Recipient FSFG and the Recipient Subsidiaries to disclose First Savings shall not, and shall cause its representatives not to, use any information obtained pursuant to this Section 4.1(c)(i) 5.3 for any purpose unrelated to the Inspector General consummation of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject transactions contemplated by this Agreement. Subject to the agreement by the Inspector General requirements of the Treasury or the Comptroller General applicable law, each of the United StatesFSFG and First Savings will keep confidential, as applicableand will cause its representatives to keep confidential, with respect to all information and documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i5.3 unless such information (i) maywas already known to FSFG or First Savings or an affiliate of FSFG or First Savings, at other than pursuant to a confidentiality agreement or other confidential relationship, (ii) becomes available to FSFG or First Savings or an affiliate of FSFG or First Savings 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 Investor’s option, be conducted on site at any office prior written approval of the Recipient ▇▇▇▇▇▇▇ or any Recipient SubsidiaryFNBO or (iv) is or becomes readily ascertainable from published information or trade sources.
(iid) Subject Each of ▇▇▇▇▇▇▇ and FNBO shall give notice to a designee of FSFG and First Savings and shall invite such person to attend all regular and special meetings of the board of directors of FNBO and all regular and special meetings of any senior management committee (including but not limited to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii)executive committee, from the Signing Date until the date on which all the Preferred Shares have been redeemed in wholeaudit committee, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipientinvestment committee, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(Eloan committee) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) FNBO. Such designees shall not require the Recipient have no right to prepare audited financial statements if it does not otherwise prepare audited financial statements vote and shall not require the Recipient attend sessions of board of directors and committees during which there is being discussed (i) matters involving this Agreement (including any Acquisition Proposal), (ii) information or material that FNBO is required or obligated to submit Call Reports to the Investor.
maintain as confidential under applicable laws or regulations or policies or procedures of FNBO, or (iii) The Investor’s information rights pursuant pending or threatened litigation or investigations if, in the reasonable opinion of counsel to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the TreasuryFNBO, the Comptroller General presence of such designees would or might adversely affect the United States confidential nature of or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide privilege relating to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studiesmatters being discussed.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (First Savings Financial Group Inc)
Access and Information. Parent and Merger Sub acknowledge that Parent, Merger Sub, their Non-Party Affiliates and their representatives have (ia) The provisions of this Section 4.1(c)(i) shall applyconducted to their satisfaction an independent investigation, (x) with respect to the Investorexamination, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares analysis and (y) with respect to the Inspector General verification of the Treasury business, financial condition, results of operations, assets, liabilities, properties, prospects and the Comptroller General projected operations of the United States, from Company and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agentsbusinesses, consultants, contractors including Parent and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts Merger Sub’s own estimate of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct value of the business of the Recipient Company and its Subsidiaries; (b) been afforded access to the books and records, facilities and officers, directors, managers, employees and other representatives of the Company and its Subsidiaries for purposes of conducting a due diligence investigation with respect thereto to their satisfaction; (c) received materials and information requested by Parent, Merger Sub or their representatives for purposes of conducting their independent due diligence investigation to Parent’s and Merger Sub’s satisfaction; and (d) had full access to and the Recipient Subsidiaries;
opportunity to review all of the documents in the “data room” maintained by the Company or otherwise provided to Parent or its representatives on behalf of the Company. In making their determination to proceed with the Transactions, Parent, Merger Sub and each of their Non-Party Affiliates have relied solely on the results of such independent investigation and verification and on the representations and warranties of the Company expressly and specifically set forth in Article IV (B) neither as qualified by the Recipient nor Disclosure Schedules with respect thereto), any Recipient Subsidiary shall be required Related Document and in the certificate delivered by this the Company pursuant to Section 4.1(c)(i) to disclose any information to the extent 8.2(c). Each of Parent and Merger Sub is (x) prohibited by applicable law or regulation (including laws knowledgeable about the industries in which the Company and regulations relating to the use or disclosure of confidential supervisory information)its Subsidiaries operate, or (y) that such disclosure would reasonably be expected capable of evaluating the merits and risks of the Transactions and (z) able to cause a violation of any agreement to which bear the Recipient or any Recipient Subsidiary is a party or would cause a substantial economic risk of a loss such investment for an indefinite period of privilege time. In connection with Parent’s and Merger Sub’s independent investigation and verification, Parent and Merger Sub, as well as their Non-Party Affiliates or representatives, may have received from the Company or its Subsidiaries, Affiliates or representatives certain projections and other forecasts, including projected financial statements, cash flow items, certain business plan information and other data related to the Recipient Company or any Recipient Subsidiary its Subsidiaries. Parent and Merger Sub acknowledge that (provided that the Recipient shall use commercially reasonable efforts i) there are uncertainties inherent in attempting to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause such projections, forecasts and plans, (Bii) apply);
(C) the obligations Parent and Merger Sub are familiar with such uncertainties and are taking full responsibility for making their own evaluation of the Recipient adequacy and the Recipient Subsidiaries accuracy of all projections, forecasts and plans so furnished to disclose information pursuant to this Section 4.1(c)(ithem, and (iii) to the Inspector General of the Treasury or the Comptroller General of the United States Parent, Merger Sub and their respective agents, consultants, contractors or advisors, Non-Party Affiliates and representatives shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, have no claim against anyone with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject foregoing. Notwithstanding anything to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in wholecontrary contained herein, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which foregoing limitations shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent not apply to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investorclaim for Fraud.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Merger Agreement (Vroom, Inc.)
Access and Information. (a) From the date hereof until the Closing, subject to any applicable Laws, Seller shall (i) The provisions afford Buyer and its representatives access, during regular business hours and upon reasonable advance notice, to the Applicable Employees and the assets, books and records of the Business (including payroll information and employee data), (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 in writing and (iii) instruct the Applicable Employees, and its counsel and financial advisors to cooperate with Buyer in its investigation of the Business, including instructing its accountants to give Buyer access to their work papers; provided, however, that in no event shall Buyer have access to any information that (x) based on advice of Seller’s counsel, could create any potential Liability under applicable Laws, including U.S. Antitrust Laws, or could destroy any legal privilege or (y) in the reasonable judgment of Seller, could (A) result in the disclosure of any trade secrets of third parties or (B) violate any obligation of Seller with respect to confidentiality so long as, with respect to confidentiality, Seller has made reasonable efforts to obtain a waiver regarding the possible disclosure from the third party to whom it owes an obligation of confidentiality. All requests for information made pursuant to this Section 4.1(c)(i5.1(a) shall applybe directed to an executive officer of Seller or such Person or Persons as may be designated by Seller. All information received pursuant to this Section 5.1(a) shall be governed by the terms of Section 5.10.
(b) Following the Closing, upon the request of another party, each of Seller, Buyer and the Companies shall, to the extent permitted by Law and confidentiality obligations existing as of the Closing, grant to a requesting Party and its representatives during regular business hours, the right, at the expense of such requesting Party, to inspect and copy the books, records and other documents in the granting Party’s possession pertaining to the operation of the Business prior to the Closing (xincluding books of account, records, files, invoices, correspondence and memoranda, customer and supplier lists, data, specifications, insurance policies, operating history information and inventory records) with respect to Seller, for purposes of preparing the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares requesting Party’s Tax Returns and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United StatesCompanies, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, for any Preferred Shares, only with respect purpose reasonably related to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersTransaction; provided, however thathowever, notwithstanding clauses (A)-(E) that the requesting Party agrees such access will give due regard to minimizing interference with the operations, activities and Employees of this Section 4.1(c)(ii), this Section 4.1(c)(ii) the granting Party. In no event shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports Seller or Buyer have access to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee consolidated federal, state or assignee local Tax Returns of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Sharesother Party.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (i) The provisions 8.1.1 Subject to Applicable Law, during the period between the date of this Section 4.1(c)(i) Agreement and Closing, Aegon Europe and Aegon shall, and shall applyprocure that Aegon Annual Report on Form 20-F 2022 | 493 About Aegon Governance and risk management Financial information Non-financial information the Group Companies shall:
a. afford ASR and any person authorised by ASR, (x) upon reasonable advance notice, access, during regular business hours, to all premises occupied by, and to, the books and records of the Group Companies;
b. afford ASR and any person authorised by ASR, upon reasonable advance notice, access to information with respect to the Investor, from Group Companies; and
c. at the Signing Date until the date when the Investor or one request of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) ASR provide such information with respect to the Inspector General of the Treasury Group Companies that ASR and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period person authorised by ASR reasonably require in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries connection with the personnel potential (including the principal officerspreparation of) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, integration by ASR. provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) in each case, that such access shall only be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information provided to the extent ASR and ASR Representatives may reasonably require such access (xa) prohibited by applicable law or regulation to comply with their obligations under this Agreement, including for the purposes of (including laws and regulations relating to i) preparation of the use or disclosure of confidential supervisory informationASR Shareholders’ Circular (Clause 6.1), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) fulfilment of the Competition Condition (Clause 7.2.2), (iii) fulfilment of the ASR Regulatory Conditions (Clause 7.2.6), (iii) preparation of the Prospectus and having the Prospectus approved by the AFM (Clause 8.9), and (iv) preparation of the Offering Circulars and having the Offering Circulars approved by the Irish Stock Exchange (Clause 8.9) and (b) for the preparation of the planning of the Group to become part of the ASR Group.
8.1.2 Subject to Applicable Law, during the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until period between the date on which all the Preferred Shares have been redeemed in wholeof this Agreement and Closing, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) Aegon shall inform ASR as soon as available after practically possible of any material developments or circumstances in relation to the end of each fiscal year business and financial position and assets of the RecipientGroup Companies, and including any possible Breach in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy respect of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the RecipientAegon’s internal controls, a copy of such assessment (other than assessments provided Warranties or breach by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) Aegon of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorAgreement.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) From the date hereof until the Closing, Sellers shall cause the Acquired Companies to, at Buyer’s sole cost and expense, and solely to the extent such information is readily available or would be readily obtained without any undue interference with the business or operations of Sellers or any of the Acquired Companies, (i) The provisions furnish to Buyer or its Representatives, such financial, operating and other data and any other information relating to the Business as such Persons may reasonably request in advance; (ii) upon reasonable prior notice and during normal working hours of the applicable Acquired Company, afford to Buyer and its Representatives reasonable access to the properties to conduct surveying, inspections, and for any other reason reasonably related to Buyer’s diligence, the Financing or this Section 4.1(c)(iAgreement (subject to reasonable safety restrictions), copies of relevant books and records and employees, officers and Representatives of the Acquired Companies; and (iii) reasonably cooperate with Buyer to allow Buyer or its applicable Affiliate to make offers of employment to the Persons and in the manner set forth in Annex D; provided that (A) the obligation of any Acquired Company to provide the information referred to in clause (i) or the access referred to in clause (ii) shall applybe subject to the Access Restrictions, (xB) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, Buyer shall not (directly or indirectlythrough any other Person) collect any air, soil, surface water or ground water samples nor to perform any Preferred Shares invasive or destructive sampling on any property related to any Acquired Company and (yC) Sellers shall have the right to have their Representatives present for any granted access, review of information or meetings with respect to the Inspector General employees, officers or Representatives of the Treasury and Acquired Companies conducted as part of any actions contemplated by clause (i), (ii) or (iii). In the Comptroller General event that any Seller does not furnish any information referred to in clause (i), or does not provide any access referred to in clause (ii), in each case of the United Statespreceding sentence, from based on the Access Restrictions, Sellers shall promptly notify Buyer of such refusal or inability to provide such information or access and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitshall use, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agentsAffiliates, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient SubsidiariesAcquired Companies, all upon reasonable noticeto use, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where arrangements, including entering into a joint defense Contract or “clean team” arrangements, or seek appropriate waivers or consents. Except in the restrictions in case of any Sellers’, its Affiliates’ or their respective Representatives’ willful misconduct or gross negligence, B▇▇▇▇ agrees to indemnify and hold harmless Sellers, their Affiliates and their respective Representatives (each of which Persons shall be a third-party beneficiary of this clause (BSection 6.04(a)) apply);
(C) the obligations for any and all Losses incurred by any of the Recipient and foregoing Persons arising out of or relating to the Recipient Subsidiaries on-site visits under this Section 6.04(a), including any claims by any Person with respect to disclose injury or death to Persons or property damage. Notwithstanding the foregoing, B▇▇▇▇’s access rights under this Section 6.04(a) shall terminate, with access to information governed by discovery, during the pendency of any Action between the parties hereto. No information or knowledge obtained by any Person in any investigation pursuant to this Section 4.1(c)(i6.04 shall affect or be deemed to modify any representation or warranty made by any party hereto.
(b) At or as soon as reasonably practicable after the Closing, Sellers shall deliver to Buyer all written books, drawings, OEM manuals and records of the Acquired Companies that are in the possession or control of Sellers or their respective Affiliates and not located at the Acquired Companies’ premises or not otherwise made available to Buyer or its Representatives. From and after the Closing, without limiting the rights of Sellers pursuant to Section 2.04(c), Buyer shall, and shall cause the Acquired Companies to (i) maintain the books and records of the Business for a period of six (6) years, except in the case of books and records relating to Taxes, which shall be maintained for any longer period required by Applicable Law; and (ii) at Sellers’ sole cost and expense, to the Inspector General extent reasonably necessary to permit Sellers or any of their Affiliates to perform their Tax, accounting and financial reporting obligations or to perform or satisfy any bona fide legal or regulatory obligation relating to any period prior to the Closing and subject to the Access Restrictions, (A) furnish to Sellers and their Representatives such financial and operating data and any other information relating to the Business as such Persons may reasonably request in advance and (B) upon no less than three (3) Business Days’ written notice and during working hours of the Treasury or the Comptroller General of the United States applicable Acquired Company, afford to Sellers and their respective agents, consultants, contractors or advisors, shall be Representatives reasonable access to the properties (subject to the agreement by the Inspector General reasonable safety restrictions), copies of books and records, and employees, officers and Representatives of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriateAcquired Companies; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such yearprovided, in each case prepared of the foregoing clauses (ii)(A) and (ii)(B), that (1) Buyer shall have the right to have its Representatives present for any communication with employees, officers or Representatives of the Acquired Companies; and (2) no Acquired Company shall be required to furnish any information to the extent that (x) Buyer reasonably believe any of Buyer or its Affiliates is prohibited from furnishing such information to Sellers or their Representatives under Applicable Law or any Contract; or (y) such information relates to pricing or other matters that are sensitive and the furnishing of such information, as determined by Buyer, might reasonably result in accordance with GAAP and setting forth antitrust difficulties for Buyer or any of their Affiliates. In the event that Buyer does not furnish any information referred to in clause (i), or does not provide any access referred to in clause (ii), in each case in comparative form the figures for the previous fiscal year of the Recipient preceding sentence, based on the Access Restrictions, Buyer shall promptly notify Sellers of such refusal or inability to provide such information or access and shall use, and shall cause its Affiliates, including the Acquired Companies, to use, commercially reasonable efforts to make appropriate substitute arrangements, including entering into a joint defense Contract or “clean team” arrangements, or seek appropriate waivers or consents. Sellers agree to indemnify and hold harmless Buyer, its Affiliates and their respective Representatives (each of which Persons shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) third-party beneficiary of this Section 4.1(c)(ii6.04(b)) for any and all Losses incurred by any of the foregoing Persons arising out of or relating to the on-site visits under this Section 6.04(b), this Section 4.1(c)(ii) shall not require the Recipient including any claims by any Person with respect to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient injury or death to submit Call Reports to the InvestorPersons or property damage.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. Upon reasonable notice, each of the Company and Parent shall (iand shall cause its subsidiaries to) The provisions afford to the other party and its representatives (including, without limitation, directors, officers and employees of the other party and its affiliates, and counsel, accountants and other advisors retained by the other party and its affiliates) such access (including, without limitation, for the purpose of conducting supplemental due diligence reviews) during normal business hours throughout the period prior to the Effective Time to the books, records (including, without limitation, loan and credit files, tax returns and work papers of independent auditors), properties, personnel and to such other information as such party may reasonably request; provided, however, that no investigation pursuant to this Section 4.1(c)(i) 5.3 shall applyaffect or be deemed to modify any representation or warranty made herein. The Company and Parent will not, (x) with respect and each will cause its representatives not to, use any information obtained pursuant to this Section 5.3 for any purpose unrelated to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General consummation of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Sharestransactions contemplated by this Plan. Subject to the foregoingrequirements of law, the Company and Parent will keep confidential, and limited solely will cause its representatives to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiarieskeep confidential, all upon reasonable notice, provided, that:
(A) any examinations information and discussions documents obtained pursuant to this Section 4.1(c)(i5.3 unless such information (i) shall was already known to the Company or Parent, as the case may be, or an affiliate of the Company or Parent, (ii) becomes available to the Company or Parent, as the 38 44 case may be, or an affiliate of the Company or Parent from other sources not known by such party to be conducted during normal business hours and in such manner as not to interfere unreasonably bound by a confidentiality agreement, (iii) is disclosed with the conduct prior written approval of the business Company or Parent, as the case may be, or (iv) is or becomes readily ascertainable from published information or trade sources. In the event that this Plan is terminated or the transactions contemplated by this Plan shall otherwise fail to be consummated, each party shall promptly cause all copies of documents or extracts thereof containing information and data as to another party hereto (or an affiliate of any party hereto) to be returned to the party which furnished the same. The provisions of the Recipient Confidentiality Agreements dated April 5, 1999 and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary December 23, 1998 shall be required by this Section 4.1(c)(i) to disclose any information survive to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to terms are not inconsistent with this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary5.3.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (ia) The provisions Each of this Section 4.1(c)(i) Meer and Parent shall apply, (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of its officers, directors, employees, auditors and agents to) afford to the Recipient’s Subsidiaries other and to permitthe other's officers, the Investoremployees, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agentsfinancial advisors, consultantslegal counsel, contractors and advisors to (x) examine any booksaccountants, papers, records, Tax returns (including all schedules and attachments thereto), data consultants and other informationrepresentatives reasonable access during normal business hours throughout the period prior to the Effective Time to all of its books and records and its properties, (y) make copies thereof plants and (z) discuss personnel and, during such period, each shall furnish promptly to the affairsother a copy of each report, finances schedule and accounts other document filed or received by it pursuant to the requirements of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiariesfederal securities laws, all upon reasonable notice, provided, that:
(A) any examinations and discussions provided that no investigation pursuant to this Section 4.1(c)(i6.1 shall affect any representations or warranties made herein or the conditions to the obligations of the respective parties to consummate the Merger.
(b) Parent shall be conducted during normal business hours retain an environmental consultant reasonably acceptable to Meer to undertake a Phase I environmental assessment of each real property owned or leased by Meer and used for the Business in such manner as not accordance with a Phase I scope of work generally followed by nationally recognized environmental consulting firms and the protocol established by the American Society for Testing and Materials, "Standard Practice for Environmental Site Assessments: Phase I Environmental Site Assessment Process", E-1527-97. Meer shall provide all necessary or appropriate access to interfere unreasonably with said real properties for the conduct of the business Phase I environmental assessment and shall provide to Parent or the environmental consultant any and all information concerning the environmental condition of the Recipient and the Recipient Subsidiaries;real properties in their custody, possession or control, including, all reports, data, assessments, investigations, tests.
(Bc) Unless otherwise required by law, each party agrees that it and its directors, officers, employees, partners, Affiliates, financing sources, agents, advisors or representatives (collectively, "Representatives") shall hold in confidence all non-public information so acquired or otherwise disclosed to him, her or it in connection with this Agreement or the transactions contemplated hereby and make no use of such confidential information except in connection with this Agreement; provided, however, that neither Meer or the Recipient Stockholders (the "Meer Parties"), on the one hand, nor any Recipient Subsidiary Parent nor Sub (the "Parent Parties"), on the other hand, shall be required by this Section 4.1(c)(ito maintain the confidentiality of any confidential information that (i) to disclose any information becomes generally available to the extent public other than as a result of a disclosure by the Meer Parties or Parent Parties, as the case may be, or their respective Representatives, (xii) prohibited by applicable law or regulation (including laws and regulations relating were available to the use Meer Parties or Parent Parties, as the case may be, on a non-confidential basis prior to the disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(iAgreement, provided that the source of such information was not known by the Meer Parties or Parent Parties, as the case may be, or their Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, any of the Meer Parties or Parent Parties, as the case may be, or any of their affiliates, with respect to such material, or (iii) becomes available to the Inspector General Meer Parties or Parent Parties, as the case may be, on a non-confidential basis from a source other than the Meer Parties or Parent Parties, as the case may be, or their Representatives, provided that the source of such information was not known by any of the Treasury Meer Parties or Parent Parties, as the Comptroller General case may be, or their Representatives, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the United States and Meer Parties or Parent parties, as the case may be, or any of their respective agents, consultants, contractors or advisors, shall be subject affiliates. Notwithstanding anything in the foregoing to the agreement contrary, a party may disclose confidential information if and to the extent that such party has been advised by counsel that such disclosure is required under applicable Laws and, prior to such disclosure, if practical, such party, to the Inspector General of the Treasury extent not otherwise prohibited from doing so under applicable Laws, promptly advise and consult with Meer or the Comptroller General of the United StatesParent, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and concerning the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause proposed to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investorso disclosed.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Merger Agreement (Schein Henry Inc)
Access and Information. The Company and its subsidiaries shall (a) afford to Parent and its accountants, counsel and other representatives full access during normal business hours (and at such other times as the parties may mutually agree) throughout the period prior to the Effective Time to all of their properties, books, contracts, commitments, records and personnel, and (b) during such period, furnish promptly to Parent (i) The provisions a copy of this Section 4.1(c)(i) shall applyeach report, (x) with respect schedule and other document filed or received by it pursuant to the Investorrequirements of federal or state securities laws, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (yii) with respect to the Inspector General of the Treasury all other information concerning its business, properties and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Sharespersonnel as Parent may reasonably request. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permitParent shall hold, and shall cause each its employees and agents to hold, in confidence all such information in accordance with the terms of the Recipient’s Subsidiaries to permitConfidentiality Agreement dated April 28, 1998 between Parent and the Company. SECTION 8.2. INDEMNIFICATION (a) Until, and after, the InvestorEffective Time, the Inspector General Purchaser's Bylaws shall contain indemnification and limitation of liability provisions which are substantially identical to the indemnification and limitation of liability provisions of Article XVII of the Treasury and the Comptroller General By-laws of the United States Company, and their respective agentssuch provisions shall not be amended, consultantsrepealed or otherwise modified in any manner that would make any of such provisions less favorable to the directors, contractors officers and advisors employees of the Company than pertain to such persons on the date hereof. Without limiting the foregoing, from the Effective Time and for a period of six years after the Effective Time, Parent shall, (xi) examine any booksindemnify, papersdefend and hold harmless the present and former officers, recordsdirectors, Tax returns employees and agents of the Company and its subsidiaries and of Purchaser (including all schedules and attachments theretocollectively, the "Indemnified Parties"), data from and other informationagainst, and pay or reimburse the Indemnified Parties for, all losses, obligations, expenses, claims, damages or liabilities resulting from third-party claims (y) make copies thereof and (z) discuss involving claims by or in the affairs, finances and accounts right of the Recipient Company) and including interest, penalties, out-of-pocket expenses and attorneys' fees incurred in the Recipient Subsidiaries with the personnel (including the principal officers) investigation or defense of any of the Recipient and same or in asserting any of their rights hereunder resulting from or arising out of actions or omissions of such Indemnified Parties occurring on or prior to the Recipient SubsidiariesEffective Time (including, all upon reasonable noticewithout limitation, provided, that:
the transactions contemplated by this Agreement) to the fullest extent permitted or required under (A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
applicable law, (B) neither the Recipient nor any Recipient Subsidiary shall be required by articles of incorporation or by-laws of the Company or Purchaser in effect on the date of this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations Agreement, including, without limitation, provisions relating to advances of expenses incurred in the use defense of any action or disclosure of confidential supervisory information)suit, or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) any indemnification agreement between the obligations of the Recipient Indemnified Party and the Recipient Subsidiaries Company; and (ii) advance to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury any Indemnified Parties expenses incurred in defending any action or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, suit with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such yearmatters, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements such Indemnified Parties are available;
(B) as soon as available after entitled to indemnification or advancement of expenses under the end Company's or Purchaser's articles of incorporation and by-laws in effect on the first, second date hereof and third quarterly periods in each fiscal year of subject to the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy terms of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents articles of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholdersincorporation and by-laws; provided, however thathowever, notwithstanding clauses that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of each such claim shall continue until final disposition of such claim. (A)-(Eb) of this Any Indemnified Party wishing to claim indemnification under Section 4.1(c)(ii), this Section 4.1(c)(ii8.2(a) shall provide notice to the Parent promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and the Indemnified Party shall permit the Parent (at its expense) to assume the defense of any claim or any litigation resulting therefrom; provided, however, that (i) counsel for the Parent who shall conduct the defense of such claim or litigation shall be reasonably satisfactory to the Indemnified Party and the Indemnified Party may participate in such defense at such Indemnified Party's expense, and (ii) the omission by any Indemnified Party to give notice as provided herein shall not require relieve the Recipient Parent of its indemnification obligation under this Agreement, except to prepare audited financial statements if it the extent that such omission results in a failure of actual notice to the Parent, and the Parent is actually prejudiced as a result of such failure to give notice. In the event that the Parent does not otherwise prepare audited financial accept the defense of any matter as above provided, or counsel for the Indemnified Parties advises the Indemnified Parties in writing that there are issues that raise conflicts of interest between the Parent and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and the Parent shall pay all reasonable fees and expenses of such counsel for the -28- 33 Indemnified Parties promptly as statements and therefor are received; provided, however, that the Parent shall not require be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld); provided, further, however, that the Recipient to submit Call Reports to Parent shall not be responsible for the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) fees and expenses of more than one counsel for all of the Indemnified Parties. In any event, the Parent and the Investor’s right Indemnified Parties shall cooperate in the defense of any action or claim. The Parent shall not, in the defense of any such claim or litigation, except with the consent of the Indemnified Party, consent to receive certifications from entry of any judgment or enter into any settlement that provides for injunctive or other nonmonetary relief affecting the Recipient pursuant to Section 4.1(d)(i) may be assigned Indemnified Party or that does not include as an unconditional term thereof the giving by the Investor claimant or plaintiff to such Indemnified Party of a transferee release from all liability with respect to such claim or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shareslitigation.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) From the date hereof until the Closing, subject to applicable Laws, Seller shall (i) The provisions afford Buyer and its authorized representatives (including representatives of this Section 4.1(c)(ientities providing or arranging financing for Buyer) shall applyaccess, during regular business hours of Seller and upon reasonable advance notice given by Buyer to Seller, to the Key Employees, the Transferred Assets, and the books and records of the Business, and (xii) furnish, or cause to be furnished, to Buyer any financial and operating data and other information that is available with respect to the InvestorBusiness and the Transferred Assets that Buyer from time to time reasonably requests and (iii) instruct the Employees, from and Seller’s counsel, accountants and financial advisors to reasonably cooperate with Buyer in its investigation of the Signing Date until Business as necessary to confirm (a) the date when accuracy of the Investor or one representations and warranties of Seller and its Affiliates no longer ownsset forth in this Agreement and any Ancillary Agreements, directly or indirectly(b) the compliance by Seller and its Affiliates of any covenants and obligations of Seller and its Affiliates set forth in this Agreement and any Ancillary Agreements, any Preferred Shares and (yc) with respect the satisfaction of any conditions to the Inspector General of the Treasury and the Comptroller General of the United Statesclosing indicated in Article VI, from and after the Signing Date butincluding, after the date when the Investor or one of its Affiliates no longer ownswithout limitation, directly or indirectly, any Preferred Shares, only with respect instructing Seller’s accountants to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Sharesgive Buyer access to their work papers. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions No investigation pursuant to this Section 4.1(c)(i5.1(a) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor alter any Recipient Subsidiary shall be required representation or warranty given hereunder by this Section 4.1(c)(i) to disclose any Seller. All requests for information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information made pursuant to this Section 4.1(c)(i5.1(a) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject directed to the agreement an executive officer of Seller or such Person or Persons as may be designated by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential Seller. All information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions received pursuant to this Section 4.1(c)(i5.1(a) mayshall be governed by the terms of the Confidentiality Agreement.
(b) During the period ending two (2) months following the Closing, upon the reasonable request of Buyer, Seller shall, to the extent permitted by Law, grant to Buyer and its representatives during regular business hours and subject to reasonable rules and regulations of Seller, the right, at the Investorexpense of Buyer, to inspect and copy the books, records and other documents in Seller’s option, be conducted on site at any office possession pertaining in whole or in part to the operation of the Recipient Business or any Recipient Subsidiary.
(ii) Subject the Transferred Assets prior to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorClosing.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) Between the date of this Agreement and the earlier to occur of the termination of this Agreement pursuant to Article VII and the Effective Time, upon reasonable prior notice, the Company will give, and shall direct its and its subsidiaries’ officers, employees, agents, consultants, investment bankers, auditors, accountants, legal counsel and other representatives to give, Purchaser and its authorized representatives (including, without limitation, its financial advisors, accountants, environmental consultants, and legal counsel) (collectively, “Representatives”), at all reasonable times, access as reasonably requested to all personnel, offices, properties and other facilities, and to all data, information, documents, contracts, agreements, commitments, books and records (including work papers) of or pertaining to the Company and any of its subsidiaries, will permit the foregoing to make such reasonable inspections as they may require and, without limiting the foregoing, will furnish Purchaser, as soon as reasonably practicable, with (i) The provisions monthly unaudited consolidated statements of this Section 4.1(c)(i) shall applyoperations of the Company and its subsidiaries as of each month then ended and related balance sheet, in the Company’s standard format, excluding footnotes thereto (other than footnotes that address the areas addressed in footnotes 5, 7, 8 and 11 to the financial statements contained in the Company’s Form 10-Q filed for the period ended September 30, 2009, which footnotes may be in summary form), (xii) any monthly Hotelligence or STR reports received by the Company or any of its subsidiaries and (iii) such other financial and operating data and other information with respect to the Investor, from business and properties of the Signing Date until the date when the Investor or one Company and any of its Affiliates no longer ownssubsidiaries as Purchaser may from time to time reasonably request. No such access, directly inspections or indirectly, furnishing of information shall have any Preferred Shares and (y) with respect effect on Purchaser or Merger Sub’s ability to assert that conditions to Closing or to the Inspector General consummation of the Treasury and the Comptroller General Merger have not been satisfied. Other than as set forth on Section 4.3(a) of the United StatesCompany Disclosure Schedule, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to notwithstanding the foregoing, none of Purchaser, Merger Sub or any of their counsel, environmental consultants, investment bankers, financial sources, lenders or other representatives will, prior to Closing Date, conduct any on-site environmental site activities of any type, including the conduct of Phase I or Phase II environmental site assessments, monitoring or invasive sampling of soil, groundwater, air, any other environmental media, or building materials or equipment, pertaining to Environmental Laws or Hazardous Materials and limited solely relating to information determined by the Investor Company Real Property, or contact any relevant environmental agency. Without the prior consent of the Company’s Chief Executive Officer or Chief Financial Officer (not to be relevant unreasonably withheld, conditioned or delayed), none of Purchaser, Merger Sub or any of their respective Representatives will contact any employee of the Company or its subsidiaries.
(b) Between the date of this Agreement and the earlier to occur of the Preferred Sharestermination of this Agreement pursuant to Article VII and the Effective Time, subject to any limitations set forth in Section 4.3(a), the Recipient will permitCompany shall provide such information as is reasonably requested by Purchaser, and shall cause reasonably cooperate with Purchaser, to enable Purchaser to determine the current and accumulated earnings and profits of the Company and each of the Recipient’s Subsidiaries to permitits subsidiaries for federal income tax purposes.
(c) The Company shall in good faith cooperate with Purchaser (including, the Investorwithout limitation, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agentsby attending meetings, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other providing information, (ymaking personnel available and taking such other commercially reasonable actions as Purchaser may request) make copies thereof and (z) discuss in connection with obtaining such assignments, consents to change of control, licenses, franchises, or terminations from the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries Franchisors as Purchaser may reasonably request in connection with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:Purchaser’s actions contemplated by Section 5.7.
(Ad) any examinations and discussions All information obtained by Purchaser or its Representatives pursuant to this Section 4.1(c)(i) 4.3 shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of kept confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year terms of the Recipient letter agreement dated as of July 31, 2009 (as amended) between the Company and which shall be audited to Purchaser (the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor“Confidentiality Agreement”));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Merger Agreement (Lodgian Inc)
Access and Information. (a) ▇▇▇▇▇ shall, and shall cause its subsidiaries to, (i) The afford Carpatsky and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "Carpatsky Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, agents, properties, offices and other facilities of ▇▇▇▇▇ and its subsidiaries and to the books and records thereof and (ii) furnish promptly to Carpatsky and the Carpatsky Representatives such information concerning the business, properties, contracts, records and personnel of ▇▇▇▇▇ and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by Carpatsky or such Representatives.
(b) Carpatsky shall, and shall cause its subsidiaries to, (i) afford to ▇▇▇▇▇ and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "▇▇▇▇▇ Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of Carpatsky and its subsidiaries and to the books and records thereof and (ii) furnish promptly to ▇▇▇▇▇ and ▇▇▇▇▇ Representatives such information concerning the business, properties, contracts, records and personnel of Carpatsky and its subsidiaries (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by ▇▇▇▇▇ or such Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i5.04, neither party shall be required to grant access or furnish information to the other party to the extent that such access to or the furnishing of such information is prohibited by Law. No investigation by the parties hereto made heretofore or hereafter shall affect the representations and warranties of the parties which are herein contained and each such representation and warranty shall survive such investigation.
(d) The information received pursuant to Section 5.04(a) and (b) by either party hereto (the "Recipient") shall apply, (x) with respect be deemed to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares be "confidential information" and (y) with respect may not be publically disclosed except pursuant to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined express written permission by the Investor to be relevant to other party hereto (the Preferred Shares, "Informant") or valid court or investigative order unless such information is already in the Recipient will permit, and shall cause each of public domain or in the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts possession of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation and was not obtained in breach of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement duty owed by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient SubsidiaryInformant.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) Except for HVE's proprietary product and customer databases, HVE shall afford IN and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "IN Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, agents, properties, offices and other facilities of HVE and to the books and records thereof and furnish promptly to IN and the IN Representatives such information concerning the business, properties, contracts, records and personnel of HVE (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by IN or such Representatives.
(b) IN shall (i) The afford to HVE and its officers, directors, employees, accountants, consultants, legal counsel, agents and other representatives (collectively, the "HVE Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, employees, accountants, agents, properties, offices and other facilities of IN and to its books and records and (ii) furnish promptly to HVE and HVE Representatives such information concerning the business, properties, contracts, records and personnel of IN (including, without limitation, financial, operating and other data and information) as may be reasonably requested, from time to time, by HVE or such Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) 5.05, neither party shall apply, (x) with respect be required to grant access or furnish information to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect other party to the Inspector General extent that such access to or the furnishing of such information is prohibited by Law. No investigation by the parties hereto made heretofore or hereafter shall affect the representations and warranties of the Treasury parties which are herein contained and the Comptroller General each such representation and warranty shall survive such investigation.
(d) Each of the United States, from parties hereto will treat and after hold as confidential any information ("Confidential Information") concerning the Signing Date but, after the date when the Investor business and affairs of IN or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect HVE that is not already generally available to the period public, refrain from using any of the Confidential Information except in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject connection with this Agreement, and deliver promptly to the foregoingparty providing such information or destroy, at the request and limited solely to information determined by the Investor to be relevant to the Preferred Sharesoption of such party, the Recipient will permit, all tangible embodiments (and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officerscopies) of the Recipient and Confidential Information which are in his or its possession. In the Recipient Subsidiariesevent that any party hereto is requested or required (by oral question or request for information or documents in any legal proceeding, all upon reasonable noticeinterrogatory, providedsubpoena, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(icivil investigative demand, or similar process) to disclose any information Confidential Information, such person will notify the other parties promptly of the request or requirement so that the other parties may seek an appropriate protective order or waive compliance with the provisions of this Section 5.05(d). If, in the absence of a protective order or the receipt of a waiver hereunder, any party hereto is, on the advice of counsel, compelled to disclose any Confidential Information to any tribunal or else stand liable for contempt, such person may disclose the Confidential Information to the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information)tribunal; PROVIDED, or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided HOWEVER, that the Recipient disclosing person shall use commercially reasonable his or its best efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) mayobtain, at the Investor’s option, be conducted on site at any office request of the Recipient other parties, an order or other assurance that confidential treatment will be accorded to such portion of the Confidential Information required to be disclosed as the other parties shall designate. The foregoing provisions shall not apply to any Recipient Subsidiary.
(ii) Subject Confidential Information which is generally available to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, public immediately prior to the Investor:
(A) as soon as available after the end time of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investordisclosure.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (a) Albion shall (i) The afford Aradyme and its officers, directors, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the "Aradyme Representatives") reasonable access at reasonable times, upon reasonable prior notice, to the officers, directors, employees, agents, properties, offices, and other facilities of Albion and to the books and records thereof; and (ii) furnish promptly to Aradyme and Aradyme Representatives such information concerning the business, properties, contracts, records, and personnel of Albion (including, without limitation, financial, operating, and other data and information) as may be reasonably requested, from time to time, by Aradyme or the Aradyme Representatives.
(b) Aradyme shall (i) afford to Albion and its officers, directors, employees, accountants, consultants, legal counsel, agents, and other representatives (collectively, the "Albion Representatives"), reasonable access at reasonable times, upon reasonable prior notice, to the officers, directors, employees, accountants, agents, properties, offices, and other facilities of Aradyme (including any subsidiary) and to the books and records thereof; and (ii) furnish promptly to Albion and the Albion Representatives such information concerning the business, properties, contracts, records, and personnel of Aradyme (including any subsidiary) (including, without limitation, financial, operating, and other data and information) as may be reasonably requested, from time to time, by Albion or the Albion Representatives.
(c) Notwithstanding the foregoing provisions of this Section 4.1(c)(i) section, no Party shall apply, (x) with respect be required to grant access or furnish information to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect other Party to the Inspector General extent that such access to, or the furnishing of such information, is prohibited by law. No investigation by the Parties hereto made heretofore or hereafter shall affect the representations and warranties of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoingParties that are herein contained, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, each such representation and warranty shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:survive such investigation.
(Ad) any examinations and discussions The information received pursuant to this Section 4.1(c)(i) shall be conducted deemed to be "Confidential Information." Each Party hereto agrees that it will treat in confidence all documents, materials, and other Confidential Information that it shall have obtained regarding the other Party during normal business hours and in such manner as not to interfere unreasonably with the conduct course of the business negotiations leading to the consummation of the Recipient transactions contemplated hereby (whether obtained before or after the date of this Agreement), the investigation provided for herein, and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall be required by preparation of this Section 4.1(c)(i) to disclose any information to the extent (x) prohibited by applicable law or regulation (including laws Agreement and regulations relating to the use or disclosure of confidential supervisory information)other related documents. Such documents, or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as other Confidential Information shall not be communicated to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment person (other than assessments provided by the Appropriate Federal Banking Agency to a Party's respective counsel, accountants, financial advisors, or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(Dlenders) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports be used for any purpose to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee detriment of the Preferred Shares other Party. No Party shall use any Confidential Information in any manner whatsoever except solely for the purpose of evaluating a possible business relationship with a liquidation preference the other Party. No Party, Aradyme Representative, or Albion Representative will, during the term of no less than an amount equal to ten percent (10%) this Agreement or at any time during the two years thereafter, irrespective of the initial aggregate liquidation preference time, manner, or cause of termination of this Agreement, use, disclose, copy, or assist any other person or firm in the use, disclosure, or copying of any documents, materials, or other Confidential Information of the Preferred Sharesother Party hereto.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. 4.1.1 During the Interim Period, Seller shall (ia) The provisions afford Buyer and its Representatives reasonable access to all of the Product Business, the Purchased Assets, and other documents and data to the extent primarily related to the Product Business and (b) use reasonable best efforts to cause its employees and Representatives to cooperate with and aid Buyer and its Representatives in its investigation of the Product Business. Any request or investigation under this Section 4.1(c)(i) 4.1.1 shall apply, (x) with respect be made or conducted on a reasonable basis by Buyer providing reasonable Notice to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares Seller and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours in such a manner as not to interfere unreasonably with the conduct of the Product Business. No investigation by Buyer or any of its Representatives or other information received by Buyer or any of its Representatives shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller (including Section 7.1) and shall not be deemed to amend or supplement the Seller Disclosure Schedules.
4.1.2 Buyer acknowledges and agrees that (a) certain records may contain information relating to Seller or its Affiliates, but not relating to the Product Business (and, notwithstanding the inclusion of such information in such records, such information shall not constitute Purchased Assets), and that Seller and its Affiliates may retain copies thereof; (b) prior to making any records available to Buyer, Seller or its Affiliates may redact any portions thereof that do not relate to the Product Business; (c) any such access or furnishing of information shall be in accordance with applicable Law under the supervision of Seller’s or its Affiliates’ personnel, and in such manner as not to interfere unreasonably with the conduct businesses, personnel or operations of the business Seller or any of the Recipient its Affiliates; (d) auditors and the Recipient Subsidiaries;
accountants of Seller or any of its Affiliates shall not be obliged to make any work papers available to any Person; and (Be) neither the Recipient nor any Recipient Subsidiary Seller shall be required by this Section 4.1(c)(i) entitled to disclose any information to the extent restrict such access, (x) prohibited by applicable law or regulation (including laws as determined, in its respective reasonable discretion, to be appropriate to ensure compliance with any Law and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to preserve any applicable attorney client privilege and to comply with contractual confidentiality obligations.
4.1.3 During the Interim Period, Buyer hereby agrees it shall not contact, and it shall cause a violation its Affiliates or Representatives to not contact, any employee, licensor, licensee, competitor, supplier, distributor or customer of any agreement to which the Recipient or any Recipient Subsidiary is a party or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, Seller with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in wholeProduct, the Recipient will deliverPurchased Assets, or will cause to be deliveredthe Product Business, to this Agreement, the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency Ancillary Agreements or the Appropriate State Banking Agency that transactions contemplated hereby or thereby, without the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents prior written consent of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorSeller.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Access and Information. (ia) The provisions From the date hereof until the Closing, subject to the applicable policies and practices of this Section 4.1(c)(i) the Funds and any applicable Law, the Sellers’ Representative shall applyand shall cause any other relevant members of the Sellers’ Group to afford the Purchasers’ Representative reasonable access to the assets, books and records, offices and other facilities and Representatives who have knowledge relating to the Target Business, in each case, in order that the Purchasers’ Representative shall have the opportunity to make such investigation and to make such copies of such information and data as the Purchasers’ Representative shall reasonably require in connection with the Transactions, including the Pre-Closing Reorganization Transactions; provided, however, that in no event shall the Purchasers’ Group have access to any information that (x) with respect to the Investor, from the Signing Date until the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject to the foregoing, and limited relates solely to information determined by the Investor to be relevant to the Preferred Shares, the Recipient will permit, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agents, consultants, contractors and advisors to (x) examine any books, papers, records, Tax returns (including all schedules and attachments thereto), data and other information, (y) make copies thereof and (z) discuss the affairs, finances and accounts of the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient Subsidiaries, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct a part of the business of the Recipient ING Group or its subsidiaries that are not being transferred pursuant to this Agreement, (y) based on advice of Sellers’ counsel, or in Sellers’ reasonable determination, would violate applicable Law or (z) in the reasonable judgment of any member of the Sellers’ Group could violate any obligation of the Sellers’ Group with respect to confidentiality. All information received pursuant to this Section 5.8(a) shall be governed by the terms of the Confidentiality Agreement until its termination according to Section 5.16(a) (Confidentiality), and the Recipient Subsidiaries;thereafter, shall be governed by Section 5.16(b) (Confidentiality) and Section 5.16(c) (Confidentiality).
(Bb) neither Following the Recipient nor any Recipient Subsidiary shall be required by this Section 4.1(c)(i) to disclose any information Closing, to the extent permitted by applicable Law, the Purchasers’ Representative agrees to provide (or cause the relevant members of the Purchasers’ Group to provide) the Sellers’ Representative with, and the Sellers’ Representative agrees to provide (or cause the relevant members of the Sellers’ Group to provide) the Purchasers’ Representative with, all necessary access to all books and records and other documents of the Target Companies and the Sale Assets and to their related assets, properties and Representatives, in each case, to the extent that such access is reasonably required by any member of such group to (x) prohibited by applicable law prepare financial statements, regulatory filings or regulation (including laws and regulations relating Tax Returns in respect of periods ending on or prior to the use or disclosure of confidential supervisory information)applicable Closing Date, or (y) that such disclosure would reasonably be expected to cause a violation comply with the terms of this Agreement, any other Transaction Document, any applicable Law or request of any agreement Government Authority; provided, however, that in no event shall the Sellers’ Group have access to which the Recipient any information that (A) based on advice of Purchasers’ counsel, or any Recipient Subsidiary is a party in Purchasers’ reasonable determination, would violate applicable Law or would cause a risk of a loss of privilege to the Recipient or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) in the obligations reasonable judgment of any member of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General Purchasers’ Group could violate any obligation of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, Purchasers’ Group with respect to documents obtained under this Section 4.1(c)(iconfidentiality. The Purchasers’ Representative agrees to (or to cause the relevant members of the Purchasers’ Group to), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding Sellers’ Representative agrees to (or to cause the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office relevant members of the Recipient or any Recipient Subsidiary.
(ii) Subject to the assignment Sellers’ Group to), retain and preserve all relevant books and records of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from Target Companies and the Signing Date until the date on which Sale Assets and all the Preferred Shares have been redeemed such other documents in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such yearits possession, in each case prepared in accordance compliance with GAAP and setting forth in each case in comparative form all applicable Law, for at least eight (8) years following the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the InvestorClosing Date.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Share Purchase Agreement (Cb Richard Ellis Group Inc)
Access and Information. (a) From the date hereof to the Closing, and subject to the restrictions set forth in the Confidentiality Agreement (as defined below), the Sellers shall permit the Buyer and its Representatives to have reasonable access, during regular business hours, to the properties, equipment, books and records to the extent relating to the Business (including onsite visits in Shenzhen China and at the Flex facility) as the Buyer may reasonably request, provided, that the Buyer and its Representatives shall conduct such activities in a manner that does not interfere unreasonably with the operations of the Sellers. All information provided or obtained pursuant to the foregoing shall be held by the Buyer in accordance with and subject to the terms of the Amended and Restated Confidentiality Agreement, dated March 10, 2020, between Sierra and Fibocom Wireless Inc. (the "Confidentiality Agreement"), which shall survive in full until the Closing or, if later, until it expires pursuant to the terms thereof. The Buyer agrees that the provisions of the Confidentiality Agreement will apply to any properties, books, records, data, documents and other information relating to the Business and the Sellers provided to the Buyer or its Affiliates or any of their respective advisers or employees pursuant to this Agreement.
(b) Following the Closing, the Buyer will give the Sellers reasonable access during the Buyer's regular business hours upon reasonable advance notice and under reasonable circumstances to the books, records and personnel of the Business transferred to the Buyer to the extent necessary for the preparation of financial statements, regulatory filings or Tax returns of the Sellers or their Affiliates in respect of periods ending on or prior to Closing, or in connection with any claim in respect thereto (to the extent the above information is reasonably necessary for a defense against such claim); provided, that such access shall be subject to the terms of a confidentiality agreement with customary provisions to be entered into between the Sellers and the Buyer prior to the provision of such books and records, and (i) the Sellers may retain confidentially and use one copy of the books, records and other information of the Business transferred to the Buyer solely for the purpose of any dispute (including with a third party) related to AECM Products, the Purchased Assets, the Assumed Liabilities, the Excluded Assets, the Excluded Liabilities or this Agreement. The provisions Sellers shall be entitled, at their sole cost and expense, to make copies of the books and records to which they are entitled to access pursuant to this Section 4.1(c)(i6.8(a).
(c) shall applyFollowing the Closing, (x) with respect the Sellers will give the Buyer reasonable access during the Sellers' regular business hours upon reasonable advance notice and under reasonable circumstances to the Investorbooks and records related to the Business but retained by the Sellers and to the personnel with knowledge thereof to the extent necessary for the preparation of financial statements, regulatory filings or Tax returns of the Buyer or its Affiliates, or in connection with any claim in respect thereto (to the extent the above information is reasonably necessary for a defense against such claim); provided, that such access shall be subject to the terms of a confidentiality agreement with customary provisions to be entered into between the Sellers and the Buyer prior to the provision of such books and records. The Buyer shall be entitled, at their sole cost and expense, to make copies of the books and records to which they is entitled to access pursuant to this Section 6.8(c). Without limiting the foregoing, the Sellers shall, and shall cause their Affiliates to, preserve and keep the Business Book and Records held by such Persons prior to Closing and not delivered to the Buyer pursuant to Section 2.1(1) until ten (10)years from the Signing Date Closing Date, and shall make such Business Book and Records available to the Buyer, as may be reasonably requested by the Buyer, if their extraction from the Sellers' information technology systems was not contemplated by the Transition Services Agreement, but they are otherwise inherent or necessary to, or customarily part of, the Business.
(d) The Buyer shall, and shall cause its Affiliates to, preserve and keep the Tax and other material books and records held by such Persons relating to the Business until the date when later of (i) seven (7) years from the Investor Closing Date (or one of its Affiliates longer if required by applicable Law) and (ii) if such books and records relate to Taxes, until a Taxing Authority is no longer owns, directly entitled to assess or indirectly, any Preferred Shares reassess the Sellers and (y) with respect to the Inspector General of the Treasury and the Comptroller General of the United States, from and after the Signing Date but, after the date when the Investor or one of its their respective Affiliates no longer owns, directly or indirectly, any Preferred Shares, only with respect to the period in to which the Investor or one of its Affiliates directly or indirectly owned any Preferred Shares. Subject such records relate, and shall make such records and personnel available to the foregoingSellers, and limited solely to information determined as may be reasonably required by the Investor to be relevant to Sellers in connection with, among other things, any insurance claims by the Preferred SharesSellers or any Legal Proceedings or tax audits against or governmental investigations of the Sellers, the Recipient will permitany of their Affiliates or any of their respective employees.
(e) The Sellers shall, and shall cause each of the Recipient’s Subsidiaries to permit, the Investor, the Inspector General of the Treasury and the Comptroller General of the United States and their respective agentsAffiliates to, consultants, contractors preserve and advisors to (x) examine any books, papers, records, keep the Tax returns (including all schedules and attachments thereto), data and other information, material books and records held by such Persons after the Closing and relating to the Business until the later of (yi) make copies thereof seven (7) years from the Closing Date (or longer if required by applicable Law) and (zii) discuss if such books and records relate to Taxes, until a Taxing Authority is no longer entitled to assess or reassess the affairsBuyer with respect to the period to which such records relate, finances and accounts of shall make such records and personnel available to the Recipient and the Recipient Subsidiaries with the personnel (including the principal officers) of the Recipient and the Recipient SubsidiariesBuyer, all upon reasonable notice, provided, that:
(A) any examinations and discussions pursuant to this Section 4.1(c)(i) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of the business of the Recipient and the Recipient Subsidiaries;
(B) neither the Recipient nor any Recipient Subsidiary shall may be required by this Section 4.1(c)(i) to disclose the Buyer in connection with, among other things, any information to insurance claims by the extent (x) prohibited by applicable law or regulation (including laws and regulations relating to the use or disclosure of confidential supervisory information), or (y) that such disclosure would reasonably be expected to cause a violation of any agreement to which the Recipient Buyer or any Recipient Subsidiary is a party Legal Proceedings or would cause a risk tax audits against or governmental investigations of a loss of privilege to the Recipient Buyer, their Affiliates or any Recipient Subsidiary (provided that the Recipient shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements under circumstances where the restrictions in this clause (B) apply);
(C) the obligations of the Recipient and the Recipient Subsidiaries to disclose information pursuant to this Section 4.1(c)(i) to the Inspector General of the Treasury or the Comptroller General of the United States and their respective agents, consultants, contractors or advisors, shall be subject to the agreement by the Inspector General of the Treasury or the Comptroller General of the United States, as applicable, with respect to documents obtained under this Section 4.1(c)(i), to follow applicable law and regulation (and the applicable customary policies and procedures) regarding the dissemination of confidential materials, including redacting confidential information from the public version of its reports and soliciting the input from the Recipient as to information that should be afforded confidential treatment, as appropriate; and
(D) for avoidance of doubt, any investigation or discussions pursuant to this Section 4.1(c)(i) may, at the Investor’s option, be conducted on site at any office of the Recipient or any Recipient Subsidiaryemployees.
(ii) Subject to the assignment of the rights under this Section 4.1(c)(ii) pursuant to Section 4.1(c)(iii), from the Signing Date until the date on which all the Preferred Shares have been redeemed in whole, the Recipient will deliver, or will cause to be delivered, to the Investor:
(A) as soon as available after the end of each fiscal year of the Recipient, and in any event within one hundred twenty (120) days thereafter, a consolidated balance sheet of the Recipient as of the end of such fiscal year, and consolidated statements of income, retained earnings and cash flows of the Recipient for such year, in each case prepared in accordance with GAAP and setting forth in each case in comparative form the figures for the previous fiscal year of the Recipient and which shall be audited to the extent audited financial statements are available;
(B) as soon as available after the end of the first, second and third quarterly periods in each fiscal year of the Recipient, a copy of any quarterly reports provided to other stockholders of the Recipient;
(C) as soon as available after the Recipient receives any assessment of the Recipient’s internal controls, a copy of such assessment (other than assessments provided by the Appropriate Federal Banking Agency or the Appropriate State Banking Agency that the Recipient is prohibited by applicable law or regulation from disclosing to the Investor));
(D) as soon as such items become effective, any amendments to the Charter, bylaws or other organizational documents of the Recipient; and
(E) at the same time as such items are sent to any stockholders of the Recipient, copies of any information or documents sent by the Recipient to its stockholders; provided, however that, notwithstanding clauses (A)-(E) of this Section 4.1(c)(ii), this Section 4.1(c)(ii) shall not require the Recipient to prepare audited financial statements if it does not otherwise prepare audited financial statements and shall not require the Recipient to submit Call Reports to the Investor.
(iii) The Investor’s information rights pursuant to Section 4.1(c)(ii) and the Investor’s right to receive certifications from the Recipient pursuant to Section 4.1(d)(i) may be assigned by the Investor to a transferee or assignee of the Preferred Shares with a liquidation preference of no less than an amount equal to ten percent (10%) of the initial aggregate liquidation preference of the Preferred Shares.
(iv) Nothing in this Section shall be construed to limit the authority that the Inspector General of the Treasury, the Comptroller General of the United States or any other applicable Governmental Entity has under law.
(v) The Recipient shall provide to the Investor all such information as the Investor may request from time to time related to the study under Section 525 of Division N of the Consolidated Appropriations Act, 2021 and related studies.
Appears in 1 contract
Sources: Master Asset Purchase Agreement (Sierra Wireless Inc)