Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 3 contracts
Sources: Merger Agreement (Macromedia Inc), Merger Agreement (Adobe Systems Inc), Merger Agreement (Adobe Systems Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as hereof through the Closing of the earlier of the Effective Time or the termination of this Agreement Merger (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations Company and Subsidiaries to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies and their financial condition, as Parent may reasonably request. During ; and (c) fully cooperate with Parent in its reasonable investigation of the Pre-Closing Period, the Company shall, and shall cause the Representatives of each businesses of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoCompanies. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: , the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by the Company during the Pre-Closing Period with the SEC, and (ii) all other information concerning its business, properties and personnel as Parent may reasonably request. In addition, the Company shall promptly provide during the Pre-Closing Period give prompt written notice to Parent, and the Parent with copies of: shall during the Pre-Closing Period give prompt written notice to the Company, if it becomes aware of (A) upon the request of Parentany representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject the failure by it to applicable Antitrust Laws, any notice, report or other document filed comply with or sent satisfy in any material respect any covenant, condition or agreement to any Governmental Body on behalf be complied with or satisfied by it under this Agreement, (C) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the Acquired Corporations conditions set forth in connection with the Merger Annex I impossible or any of the other Contemplated Transactions; unlikely or that has had or would reasonably be expected to have a Company Material Adverse Effect, and (iiD) subject to applicable Antitrust Lawsthe commencement of any litigation or Proceeding against the Company, Parent or Acquisition Co. Nothing in this Section 5.1 shall promptly provide require the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of provide Parent or Merger Sub in connection Acquisition Co. with the Merger or any of the other Contemplated Transactionsinformation relating to an Alternative Transaction Proposal.
Appears in 3 contracts
Sources: Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co), Merger Agreement (Foster L B Co)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement or the Effective Time (the "“Pre-Closing Period"”), subject to applicable Legal Requirements and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shall, and shall cause the respective Representatives of the Acquired Corporations its Subsidiaries to: (ai) provide the Representatives of Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel its Representatives and assets and to all existing Contracts (subject to confidentiality obligations), books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany or any of its Subsidiaries, as reasonably requested by Parent; and (b) provide the Representatives of Parent and Parent's Representatives with such copies of the existing Contracts (subject to confidentiality obligations), books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company and its Subsidiaries as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit requested by Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, and subject to Section 6.04(b), during the Pre-Closing Period: (i) , the Company and Parent shall promptly each, at least two Business Days prior to the filing thereof, provide Parent the other with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document proposed to be filed with or sent to any Governmental Body on behalf of any of the Acquired Symyx Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
(b) During the Pre-Closing Period, the Company shall promptly notify Parent in writing of any event, condition, fact or circumstance that would reasonably be expected to make the timely satisfaction of any of the conditions set forth in Article 7 impossible or unlikely or that has had or would reasonably be expected to have or result in a Company Material Adverse Effect. Without limiting the generality of the foregoing, the Company shall promptly advise Parent in writing of any material Legal Proceeding or material claim threatened, commenced or asserted against or with respect to any of the Symyx Corporations. No notification given to Parent pursuant to this Section 5.01(b) shall limit or otherwise affect any of the representations, warranties, covenants or obligations of the Company contained in this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc), Merger Agreement (Symyx Technologies Inc)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, GHX shall (and shall cause the respective Representatives of the Acquired Corporations its Subsidiaries to: ): (a) provide Parent the Stockholder and Parent's the Stockholder’s Representatives with reasonable access during normal business hours hours, upon reasonable notice to the Acquired Corporations' RepresentativesGHX, to GHX’s and its Subsidiaries’ personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsGHX or its Subsidiaries; and (b) provide Parent or make available to the Stockholder and Parent's the Stockholder’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to GHX or its Subsidiaries as the Acquired Corporations as Parent Stockholder may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations Period and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, GHX and the Stockholder shall promptly provide the other party with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of GHX or the Acquired Corporations Stockholder, as applicable, in connection with the Merger or any of the other Contemplated Transactions; and . The foregoing shall not require GHX to permit any inspection, or to disclose any information, that in the reasonable judgment of GHX could reasonably be expected to result in (i) the disclosure of any trade secrets of third parties or the violation of any obligations of GHX with respect to confidentiality if GHX shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure, (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies waiver of any material notice, report applicable attorney-client privilege so long as GHX has taken reasonable steps to permit inspection of or other document filed to disclose information described in this clause (ii) on a basis that does not compromise GHX’s privilege with respect thereto or sent to (iii) the violation of any Governmental Body on behalf of Parent applicable Legal Requirement. The parties shall seek in good faith appropriate substitute disclosure arrangements under circumstances in which the immediately preceding sentence applies. No investigation by the Stockholder shall limit or Merger Sub in connection with the Merger or otherwise affect any of the other Contemplated Transactionsrepresentations, warranties, covenants or obligations of GHX contained in this Agreement.
Appears in 3 contracts
Sources: Exchange Agreement (University Healthsystem Consortium), Exchange Agreement (Neoforma Inc), Exchange Agreement (Global Healthcare Exchange, LLC)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8 or the Effective Time (the "“Pre-Closing Period"”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shalland Parent shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (a) provide Parent and Parent's the Representatives of the other party with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany, as the case may be; and (b) provide Parent and Parent's the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Acquired Corporations Company, as Parent the case may reasonably requestbe. During the Pre-Closing Period, the Company and the Parent shall, and shall cause the their respective Representatives of each of the Acquired Corporations to, permit Parent's cause their senior officers to meet, upon reasonable notice and during normal business hours, with the their respective chief financial officer officers and other officers of the Company responsible for the Company's ’s and Parent’s financial statements and the internal controls of the Acquired Corporations controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoappropriate. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: Period (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) but subject to applicable Antitrust LawsLegal Requirements, and except in the case of any document relating to any Acquisition Proposal, Superior Offer or Triggering Event), the Company and Parent shall each promptly provide the other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Tetraphase Companies or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsTransactions a reasonable time in advance of the filing or sending of such document in order to permit a review thereof. Nothing herein shall require the Company or Parent to disclose any information if such disclosure would jeopardize any attorney-client privilege or contravene any applicable Legal Requirement or binding agreement entered into prior to the date of this Agreement; provided that the parties shall cooperate to disclose such information without jeopardizing such privilege or contravening such Legal Requirements or binding agreements. All information exchanged pursuant to this Section 4.1 shall be subject to the Confidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Acelrx Pharmaceuticals Inc), Merger Agreement (Tetraphase Pharmaceuticals Inc)
Access and Investigation. During the period commencing on From the date of this Agreement and ending as until the earlier to occur of the earlier of the Effective Time Closing Date or the termination of this Agreement Agreement, Parent shall cause the Rodeo Entities to allow Buyer and its Representatives reasonable access, at all reasonable times during normal business hours, upon reasonable notice, to the officers, employees and other personnel, attorneys, accountants, lenders and other representatives, records and files, correspondence, audits and properties, as well as to all information relating to commitments, contracts, titles and financial position and results of operations, or otherwise pertaining to the business, operations, and affairs of the Rodeo Entities and the Business, including inspection of such properties. Notwithstanding the foregoing, neither Rodeo nor any of its Affiliates shall be required to provide any information that (x) it reasonably believes it may not provide to Buyer by reason of Legal Requirements, (y) the "Pre-Closing Period"disclosure of which would reasonably be expected to jeopardize applicable attorney/client privilege or work product protections; provided that Buyer and Parent shall consider in good faith on a case by case basis whether such privilege or protection may be preserved by entering into a common interest agreement, joint defense agreement or similar arrangement, or (z) it is required to keep confidential by reason of contract or agreement with third parties, provided that in lieu of providing any such contract or agreement Rodeo provides Buyer with a reasonably detailed summary of the material terms thereof. All requests for site visits and related discussions or questions regarding procedures shall be coordinated with the Chief Accounting Officer of Seller, unless such individual directs otherwise, and in no event shall Buyer or anyone on Buyer’s behalf communicate with any past, present or prospective supplier, customer, consultant, creditor, bank or employee of Seller, any Rodeo Entity or the Business, or with any Governmental Entity, concerning or related to the Transactions, unless Parent consents in advance to such communication, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the term “inspection” herein shall not encompass, and neither Buyer nor its Representatives shall be entitled to conduct (except as may be consented to in writing by Parent in its sole discretion), any Phase I review (whether conducted pursuant to applicable ASTM standards or otherwise) or any invasive, surface or subsurface testing or sampling, whether contemplated by any on-site investigation conducted in accordance with the Company current ASTM standards for the conduct of a Phase II on-site investigation or otherwise, including any soil borings, hand borings, geoprobes, test pits or monitoring ▇▇▇▇▇. IN CONNECTION WITH ANY ENVIRONMENTAL DUE DILIGENCE, SUBJECT TO SECTIONS 7.2(d) and 7.2(f)(vii), BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD PARENT, SELLER, RODEO AND EACH OF THE BUYER-INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES (AS DEFINED IN SECTION 10.2(a)(i) AND BELOW IN THIS SECTION 5.1) ARISING OUT OF OR RELATING TO THE DUE DILIGENCE CONDUCTED BY, BUT ONLY TO THE EXTENT CAUSED BY, BUYER, BUYER’S AFFILIATES OR ANY PERSON ACTING ON BUYER’S OR ITS AFFILIATES’ BEHALF, IN CONNECTION WITH ANY REAL PROPERTY SITE VISITS, REAL PROPERTY SITE INSPECTIONS AND ANY SAMPLING OF ANY ENVIRONMENTAL MEDIA FROM ANY REAL PROPERTY (IF AND TO THE EXTENT SELLER CONSENTS TO SUCH ACTIVITIES). Without limiting the foregoing, for purposes of this Section 5.1, “Damages” includes demands, claims, lawsuits, causes of action, losses, investigations and other proceedings, and other elements of “Damages” related thereto, brought by or asserted by Rodeos’ customers and the owners of any affected Leased Real Property. Buyer shall, and shall cause its Representatives to, in connection with the respective Representatives conduct of the Acquired Corporations to: (a) provide Parent due diligence investigations described in this Section 5.1, comply fully with all rules, regulations, policies and instructions reasonably issued by Parent's Representatives with reasonable access during normal business hours , Seller or any Rodeo Entity and provided to the Acquired Corporations' RepresentativesBuyer regarding such Person’s actions while upon, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably requestentering or leaving any Real Property. During the Pre-Closing Period, the Company shallBuyer shall not, and shall cause its Representatives not to, unreasonably interfere with the Representatives of each day-to-day operations of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate Business in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of conducting any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsdue diligence activities.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Joy Global Inc), Stock Purchase Agreement (Cameron International Corp)
Access and Investigation. (a) During the period commencing on Interim Period, upon reasonable advance notice to the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations Company and its Subsidiaries to: (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' Company’s and its Subsidiaries’ respective Representatives, personnel and personnel, properties, assets and to all existing books, Contracts, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany and its Subsidiaries; and (bii) provide furnish promptly to Parent and Parent's ’s and its Subsidiaries’ Representatives with such copies of the existing books, contracts, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company and its Subsidiaries, and with such additional financial, operating and other data and information regarding the business, properties, and personnel of the Company and its Subsidiaries, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Company, and in such a manner as to not interfere unreasonably with the normal operation of the business of the Company. During All requests for information made pursuant to this Section 5.1(a) shall be directed to the Preexecutive officer or other Person designated by the Company. With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall instruct the applicable Representatives of Parent to comply with, all of its confidentiality and non-Closing Perioduse obligations under the Confidentiality Agreement dated November 12, 2014 and amended as of December 29, 2015, between the Company shalland Parent (the “Confidentiality Agreement”). Notwithstanding anything herein to the contrary, Parent and Purchaser shall not, and shall cause the their respective Representatives of each of the Acquired Corporations not to, permit Parent's senior officers to meetcontact any employee, upon reasonable notice and during normal business hoursconsultant, with the chief financial officer and other officers customer, licensee, partner, supplier or vendor of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Offer, the Merger or any of the other Contemplated Transactions; transactions contemplated by this Agreement without the Company’s prior written consent, and Parent and Purchaser acknowledge and agree that any such contact shall be arranged and supervised by Representatives of the Company.
(b) Nothing herein shall require the Company to disclose any information to Parent or Purchaser if such disclosure would, in the Company’s reasonable discretion (i) jeopardize any attorney-client or other legal privilege (provided that the Company will nonetheless provide Parent or Purchaser and the applicable Representatives of Parent or Purchaser with appropriate information regarding the factual basis underlying any circumstances that resulted in the preparation of such privileged analyses so long as such privilege will not be jeopardized thereby) or (ii) subject contravene any Applicable Law, fiduciary duty or binding agreement entered into prior to applicable Antitrust Lawsthe date hereof, Parent shall promptly provide including any confidentiality agreement to which the Company or its Affiliates is a party (provided that the Company's Representatives with copies Company shall use its commercially reasonable efforts to obtain the consent of any material notice, report such agreement’s counterparty to such inspection or other document filed with or sent disclosure). The Company and Parent will each use its commercially reasonable efforts to any Governmental Body on behalf of Parent or Merger Sub make appropriate substitute arrangements to permit reasonable disclosure under circumstances in connection with which the Merger or any restrictions of the other Contemplated Transactionspreceding sentence apply.
Appears in 2 contracts
Sources: Merger Agreement (CalAmp Corp.), Merger Agreement (Lojack Corp)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or the date of termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations Companies to: (a) , provide Parent and Parent's ’s Representatives (including Parent’s financing sources and prospective financing sources and their respective advisors and representatives) with reasonable access access, during normal business hours and upon reasonable advance notice, to the Acquired Corporations' Companies’ Representatives, personnel assets, properties, offices, plants and assets other facilities, and to all existing books, books and records, Tax Returnsand shall furnish Parent and Parent’s Representatives with such financial, work papers operating and other data and information (including (1) all operations, documents and information related to conflict minerals; (2) the work papers of the Company’s accountants, subject to the prior consent of such accountants, which consent the Company shall use its reasonable best efforts to obtain as soon as practicable; (3) information regarding any works council or other employee representative body, including any consultation notice or consent required therefrom; (4) information relating to the any new standards-setting organization, university or industry bodies or consortia, or other multi-party special interest groups or activities, that any Acquired CorporationsCompany enters into, commences participation in, establishes or joins; and (b5) information regarding any event, occurrence, claim or Legal Proceeding that, if such event, occurrence, claim or Legal Proceeding had arisen prior to the date of this Agreement, would have constituted or resulted in a breach of, or would have been required to be disclosed under, any of Sections 2.8(i)(ii), 2.8(i)(iii), 2.8(i)(iv), 2.8(q) and 2.19(a)) as Parent, through Parent’s Representatives, may reasonably request, as long as these actions are in compliance with all applicable data privacy/protection Legal Requirements; provided, however, that, the Acquired Companies will be under no obligation to provide Parent and Parent's its Representatives with any such copies of the existing books, records, Tax Returns, work papers and other documents and access or information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Periodif: (i) in the Company reasonable good faith judgment of the Company, the information is subject to confidentiality obligations to a third party; (ii) disclosure of any such information or document would result in the loss of attorney-client privilege of the Acquired Companies; or (iii) constitute a violation of applicable Legal Requirements, provided further, however, that with respect to clauses “(i)” through “(iii),” the Acquired Companies, as applicable, shall promptly provide Parent with copies ofuse their commercially reasonable efforts to: (A) upon obtain the request required consent of Parentany such third party to provide such inspection or disclosure; (B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent and the Company; and (C) in the case of clauses “(ii)” and “(iii),” utilize the procedures of a joint defense agreement or implement such other techniques if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Legal Requirements or jeopardizing such attorney-client privilege.
(b) Promptly following the date of this Agreement, unaudited monthly consolidated balance sheets the Company will use its reasonable best efforts to provide Parent with a list of (and copies of, to the extent not previously Made Available by the Company) all Contracts, orders, writs, injunctions, judgments or decrees to which any Acquired Company is a party to, or to which any asset of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject Companies that is material to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Companies, taken as a whole, is bound, that restricts in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material noticerespect or prohibits in any material respect any Acquired Company from soliciting, report hiring or other document filed with retaining any Person as an employee, consultant or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsindependent contractor.
Appears in 2 contracts
Sources: Merger Agreement (Intel Corp), Merger Agreement (Altera Corp)
Access and Investigation. During the period commencing on From the date of this Agreement until the Closing, upon reasonable advance notice, each of BarTech, RES Holding and ending as of the earlier of the Effective Time or the termination of this Agreement USS/Kobe (the "Pre-Closing Period"), the Company shallonly with respect to its Bar Business) will, and shall will cause the respective Representatives each of the Acquired Corporations their Subsidiaries and relevant Affiliates to: :
(a) provide Parent Afford the other parties hereto and Parent's their Representatives with and their lenders and their Representatives reasonable access during normal business hours to the Acquired Corporations' Representativespersonnel, personnel properties, contracts, books and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; data of such Person and its Subsidiaries and relevant Affiliates;
(b) provide Parent Furnish the other parties hereto and Parent's their Representatives with such copies of the existing booksall such contracts, books and records, Tax Returns, work papers and other existing documents and information relating to the Acquired Corporations data as Parent they may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Transaction Documents and the transactions contemplated hereby and thereby;
(c) Furnish the other parties hereto and their Representatives with such additional financial, operating, and other data and information with respect to such Person and its Subsidiaries and relevant Affiliates as they may reasonably request; provided, however, that such investigation shall not unreasonably interfere with any of the businesses or operations of such Person or any of its Subsidiaries or relevant Affiliates and will be at the cost of the Person making such investigation;
(d) Notwithstanding the foregoing, neither BarTech, RES Holding nor USS/Kobe will be required prior to the Closing Date to disclose or cause the disclosure to the Representatives of any such Person (or provide access to any of their or their Subsidiaries' or relevant Affiliates' properties, contracts, books or records) of any confidential information relating to pricing and marketing plans, to the extent that such Person receives the written advice of outside legal counsel which counsel will be reasonably satisfactory to the other Persons that disclosure of such information would be inconsistent with any applicable antitrust or competition law, nor will such Person be required to permit or cause others to permit the Representatives of such Person to photocopy or remove from the offices or properties of any such Person or any of its Subsidiaries or relevant Affiliates any original or photocopied documents, drawings or other materials that might reveal any such confidential information;
(e) From the date hereof and following the Closing, each of the parties hereto agrees to, and will cause its Subsidiaries, Affiliates and Representatives to treat and hold as confidential (and not disclose or provide access to any Person) all information provided to pursuant to this Agreement or other Transaction Documents as provided in Section 10.6; and
(f) Each of BarTech, the Republic Parties, the BV Parties and the USX/Kobe Parties acknowledges and agrees that it (i) has made its own inquiry and investigation into, and based thereon, has formed an independent judgment concerning the business, the assets and liabilities of the other parties, (ii) has been furnished with or given adequate access to such information about the business, the assets and liabilities of the other parties as it has requested, (iii) has had independent legal, financial and technical advice relating to the business and the assets of the other parties and the terms of this Agreement and the Transaction Documents and (iv) will not assert any claim against any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company parties or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger their Affiliates or any of their or their Affiliates' respective directors, officers, employees, agents, stockholders, consultants, investment bankers, accountants or representatives, or hold any such persons liable, for any inaccuracies, misstatements or omissions with respect to information (other than the representations and warranties of the other Contemplated Transactionsparties contained in this Agreement) furnished by the other parties or such persons concerning the other parties, provided, however, that nothing contained in this Agreement will preclude the assertion by any party or its Affiliates of any causes of action that may exist, not based upon breach of contract, for fraud. Any implied warranty or other rights applicable to any of the transactions contemplated hereby under the law of any jurisdiction is hereby expressly and irrevocably waived by each party to the fullest extent permitted by such legal requirements, and each party agrees that it will not seek to enforce any such implied warranties or other rights.
Appears in 2 contracts
Sources: Master Restructuring Agreement (Rti Capital Corp), Master Restructuring Agreement (Republic Technologies International Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Offer Acceptance Time or and the termination of this Agreement pursuant to Section 8.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations Company to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' Company’s Representatives, personnel personnel, and assets and to all existing books, records, Tax Returns, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired CorporationsCompany; and (b) promptly provide Parent and Parent's ’s Representatives with such all reasonably requested information regarding the business of the Company, including copies of the existing books, records, Tax Returns, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations Company, and with such additional financial, operating, personnel and other data and information regarding the Company, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, the Company shall, and shall cause the Representatives supervision of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers appropriate personnel of the Company responsible for and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company's financial statements . Nothing herein shall require the Company to disclose any information to Parent if such disclosure would, in its reasonable discretion (and after notice to Parent) (i) jeopardize any attorney-client or other legal privilege (so long as the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Company has reasonably cooperated with Parent to satisfy permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its obligations under Affiliates is a party); provided, further, that (A) the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, Company shall use commercially reasonable efforts during the Pre-Closing Period: (i) the Company shall promptly Period to provide Parent with copies of: redacted versions of any documents withheld in accordance with the foregoing sub-clause “(A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; ii)” and (B) information shall be disclosed subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf execution of any of the Acquired Corporations a joint defense agreement in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.customary
Appears in 2 contracts
Access and Investigation. During (a) Subject to Section 4.1(b), during the period commencing on the date of this Agreement and ending as of the earlier of the Business Combination Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company shallupon reasonable advance notice:
(i) Applied and TEL shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (aA) provide Parent the Representatives of TEL and Parent's Representatives Applied, respectively, with reasonable access during normal business hours to the Acquired Corporations' Representativesits personnel, personnel tax and accounting advisers and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporationsit or any of its Subsidiaries, in each case as reasonably requested by TEL and Applied; and (bB) provide Parent the Representatives of TEL and Parent's Representatives Applied, respectively, with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may it and its Subsidiaries that is reasonably request. During the Pre-Closing Period, the Company shall, requested by TEL and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without Applied; and
(ii) without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company Applied and TEL shall each promptly provide Parent the other with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any material notice, material report or other material document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Applied Entities and TEL Entities, respectively, in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger Business Combination or any of the other Contemplated Transactions.
(b) Notwithstanding anything to the contrary set forth in Section 4.1(a), Section 4.4, or Section 4.7, during the Pre-Closing Period, neither Applied nor TEL shall be required to provide or cause to be provided any access or copies or otherwise comply with such Sections if doing so would, in its reasonable judgment: (i) cause material competitive harm to any Applied Entity or TEL Entity, as the case may be; (ii) violate any applicable Legal Requirements or the terms of any confidentiality restrictions under any Applied Contracts or TEL Contracts, as the case may be; or (iii) jeopardize any attorney-client or other legal privilege; provided, however, that if providing such access or copies or otherwise complying with such Sections would, in the reasonable judgment of Applied or TEL, cause one or more of the effects described in clauses “(i)” through “(iii)” of this Section 4.1(b), Applied and TEL, respectively, shall use, and shall cause each of its Subsidiaries to use, its reasonable best efforts to negotiate in good faith agreements or arrangements that permit providing such access or copies or otherwise complying with such Sections without having any of such effects.
Appears in 2 contracts
Sources: Business Combination Agreement, Business Combination Agreement (Applied Materials Inc /De)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of the earlier of until the Effective Time or Time, upon reasonable advance notice to the termination of this Agreement (the "Pre-Closing Period")Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and personnel, properties, assets and to all existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide furnish promptly to Parent and Parent's ’s and its Subsidiaries’ Representatives with such copies of the existing books, contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations’ business, properties, prospects and personnel, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Periodsupervision of appropriate personnel of the Company, and in such a manner as to not to interfere unreasonably with the normal operation of the business of the Company; provided, further that no investigation pursuant to this Section 5.1 shall affect or be deemed to modify any representation or warranty made by the Company shallin this Agreement. With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall cause instruct the applicable Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy comply with, all of its confidentiality obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Confidentiality Agreement dated July 12, 2013, between the Company and Parent (the rules and regulations relating thereto. Without limiting “Confidentiality Agreement”).
(b) Nothing herein shall require the generality of Company to disclose any of the foregoinginformation to Parent if such disclosure would, during the Pre-Closing Period: in its reasonable discretion (i) jeopardize any attorney client or other legal privilege (provided, that the Company will nonetheless provide Parent and the applicable Representatives of Parent with appropriate information regarding the factual basis underlying any circumstances that resulted in the preparation of such privileged analyses) or (ii) contravene any applicable Legal Requirement, fiduciary duty or binding agreement entered into prior to the date of this Agreement, including any confidentiality agreement to which the Company or its Affiliates is a party (provided, that the Company shall promptly provide use its commercially reasonable efforts to obtain the consent of any such agreement’s counterparty to such inspection or disclosure). The Company and Parent with copies of: (A) upon will each use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure under circumstances in which the request of Parent, unaudited monthly consolidated balance sheets restrictions of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionspreceding sentence apply.
Appears in 2 contracts
Sources: Merger Agreement (Amgen Inc), Merger Agreement (Onyx Pharmaceuticals Inc)
Access and Investigation. During Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending as of the earlier of at the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, ; and shall cause the Representatives of each of the Acquired Corporations to, (c) permit Parent's senior ’s officers and other employees to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers and Managers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoappropriate. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: :
(Ai) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations as of the end of each calendar month and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of stockholders’ equity and statements of cash flows; flows for such calendar month, which shall be delivered by the Company to Parent within twenty days after the end of such calendar month;
(ii) all material operating and financial reports prepared by the Acquired Corporations for the Company’s senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company’s senior management;
(Biii) subject any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits stockholders;
(iv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Material Contract or sent to any of the Acquired Corporations by any party to any Material Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any such Material Contract and that is of the type sent in the ordinary course of business and consistent with past practices);
(v) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions;
(vi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations relating to any pending or threatened Legal Proceeding involving or affecting any of the Acquired Corporations; and and
(iivii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
Appears in 2 contracts
Sources: Merger Agreement (Rae Systems Inc), Merger Agreement (Rae Systems Inc)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause its Subsidiaries and the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and personnel, properties, assets and to all existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide furnish promptly to Parent and Parent's ’s Representatives with such copies of the existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations’ business, properties, prospects and personnel, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, under the supervision of appropriate personnel of the Company, and in such a manner as to not to interfere unreasonably with the normal operation of the business of the Company. During All requests for information made pursuant to this Section 5.1(a) shall be directed to the executive officer or other Person designated by the Company. In addition, during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the other Acquired Corporations to, permit (i) furnish, as promptly as reasonably practicable, to Parent a copy of all monthly and other interim financial statements as the same become available, (ii) cause one or more of its designated Representatives to confer on a reasonable basis with designated Representatives of Parent to report operational matters of materiality and the general status of ongoing operations, including the status of customer relations, order backlog and future plans to service customer needs, and (iii) cooperate with Parent as it reasonably requests to assist Parent in planning to implement Parent's senior officers to meet’s plans for conducting the combined operations of Parent and its Subsidiaries, upon reasonable notice and during normal business hours, together with the chief financial officer Acquired Corporations, after the Effective Time; provided, however, that in no event shall any action described in clauses (i), (ii) and other officers (iii) interfere unreasonably with the normal operation of the business of the Company. With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall instruct the applicable Representatives of Parent to comply with, all of its confidentiality and non-use obligations under the Confidentiality Agreement dated November 12, 2014, between the Company and Parent (the “Confidentiality Agreement”). Notwithstanding anything herein to the contrary, Parent, Merger Sub or Merger LLC shall not, and shall cause their respective Representatives not to, contact any customer or vendor of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Mergers or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or transactions contemplated by this Agreement without the Company's Representatives with copies of any material notice’s prior written consent (which consent shall not be unreasonably withheld, report conditioned or other document filed with or sent to any Governmental Body on behalf of Parent or delayed), and Parent, Merger Sub in connection with the and Merger or LLC acknowledge and agree that any such contact shall be arranged and supervised by Representatives of the other Contemplated TransactionsCompany.
Appears in 2 contracts
Sources: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or the termination of this Agreement Closing Date (the "PrePRE-Closing PeriodCLOSING PERIOD"), the Company Seller shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Acquisition Sub and their Representatives with reasonable access during normal business hours to the Acquired Corporations' Seller's Representatives, personnel and assets Purchased Assets and to all existing books, records, Tax Returns, internal work papers and other documents and information relating to Seller and the Acquired CorporationsPurchased Assets; and (b) provide Parent and Parent's Acquisition Sub and their Representatives with such copies of the existing books, records, Tax Returns, internal work papers and other documents and information relating to the Acquired Corporations Seller, and with such additional financial, operating and other data and information regarding Seller and its financial condition, as Parent or Acquisition Sub may reasonably request. During the Pre-Closing Period, the Company shall, ; and shall cause the Representatives of each (c) fully cooperate with Parent and Acquisition Sub in their reasonable investigation of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoPurchased Assets. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: , Seller shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed or furnished by Seller during the Pre-Closing Period with the SEC, (ii) any material notice, document or other communication sent or proposed to be sent by or on behalf of Seller by any party to any Assumed Contract or sent to Seller by any party to any Assumed Contract (other than any communication that relates solely to routine commercial transactions between Seller and the other party to any such Assumed Contract and that is of the type sent in the ordinary course of business and consistent with past practices); and (iii) all other information existing concerning the Business, properties and personnel as Parent or Acquisition Sub may reasonably request; it being understood that, with respect to the information referenced in this Section 5.01(a), Seller shall not be required to create information for Parent and Acquisition Sub that it would not normally create in the ordinary course of business.
(b) Seller shall during the Pre-Closing Period give prompt written notice to Parent and Acquisition Sub, and Parent and Acquisition Sub shall during the Pre-Closing Period give prompt written notice to Seller, of:
(i) the Company shall promptly provide Parent with copies of: discovery by such party of any event, condition, fact or circumstance that occurred or existed on or prior to the date of this Agreement and that caused or constitutes an inaccuracy in any representation or warranty made by such party in this Agreement;
(Aii) upon any event, condition, fact or circumstance that occurs, arises or exists after the request date of Parent, unaudited monthly consolidated balance sheets this Agreement and that would cause or constitute a material inaccuracy as of the Acquired Corporations and date hereof or as of the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and Closing Date in any representation or warranty made by such party in this Agreement;
(Biii) subject the failure by it to applicable Antitrust Laws, any notice, report or other document filed comply with or sent satisfy in any material respect any covenant, condition or agreement to any Governmental Body on behalf be complied with or satisfied by it under this Agreement;
(iv) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the Acquired Corporations conditions set forth in connection with Article 6 impossible or unlikely or that has had or would reasonably be expected to have a Material Adverse Effect; or
(v) the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies commencement of any material notice, report litigation or other document filed with Proceeding against or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsaffecting this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Animas Corp), Asset Purchase Agreement (Cygnus Inc /De/)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives ensure that each of the other Acquired Corporations toCompanies: (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' RepresentativesCompanies’ personnel, personnel properties, facilities and assets and to all existing books, records, Tax Returns, Contracts, permits, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (bii) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, Contracts, permits, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies, as Parent may reasonably request. During ; (iii) instruct the Pre-Closing Periodemployees, the Company shallcounsel, accountants and shall cause the Representatives of other Representatives, in each case, as appropriate or relevant, of the Acquired Corporations toCompanies to reasonably cooperate with and make themselves reasonably available to Parent in good faith in connection with the foregoing; and (iv) maintain in operation the electronic data room(s) made available by the Company to Parent and its Representatives in connection with the Contemplated Transactions and continue to provide Parent and its Representatives with access through such electronic data room(s) to all information contained therein as of the date of this Agreement to the same extent provided prior to the date hereof, permit Parent's senior officers and (v) promptly notify Parent of the commencement of any material Legal Proceeding the commencement of which Parent has not previously been notified by the Company or its Representatives and provide periodic briefings at the request of Parent to meetupdate Parent at a reasonable level of detail on the status of any material Legal Proceeding or material claim threatened, commenced or asserted against or with respect to any of the Acquired Companies, or any material developments in ongoing material Legal Proceedings of the Acquired Companies, in the case of the foregoing clause (i), (A) upon reasonable notice and advance notice, during normal business hours, in accordance with reasonable procedures established by Parent and the Company and in a manner that does not unreasonably interfere with the chief financial officer and other officers normal operation of the Company responsible for the Company's financial statements and the internal controls business of the Acquired Corporations Companies, including any reasonable procedures established by the Acquired Companies in response to discuss such matters the COVID-19 pandemic; (B) as Parent may deem necessary reasonably request for purposes reasonably related to the Contemplated Transactions; (C) which shall exclude any invasive testing or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act evaluation, including any Phase II environmental testing; and the rules (D) which shall be at Parent’s sole cost and regulations relating theretoexpense. Without limiting the generality of any generality, in each case of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent Parent, upon request, with copies of: (Ax) upon the request of Parent, unaudited monthly consolidated balance sheets any written materials or communications sent by or on behalf of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flowsCompany to its stockholders; and (By) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub Companies in connection with the Merger or any of the other Contemplated Transactions.
(b) Notwithstanding anything in clause (a) of this Section 4.1, no Acquired Company shall be required to afford access or furnish information to the extent that affording such access or furnishing such information would (i) violate applicable Laws; (ii) violate any confidentiality agreement or provision with any third party to which any Acquired Company is a party; (iii) jeopardize the attorney-client privilege, work product doctrine or other legal privilege held by any Acquired Company; or (iv) in the Company’s reasonable judgment, after consultation with in-house or outside legal counsel, constitute inappropriate disclosure of competitively sensitive information, including any Government Contract or Government Bid (provided that, the Company shall use its reasonable best efforts to allow for such access or to furnish such information in a manner that does not violate any such confidentiality agreement or provisions, any applicable Laws or constitute disclosure of competitively sensitive information or does not jeopardize the attorney-client privilege, work product doctrine or other legal privilege).
(c) Subject to the terms and conditions herein provided and subject to applicable Laws, the Company shall, and shall cause each of its respective Subsidiaries to, cooperate with Parent and take all reasonable actions requested by Parent to ensure an orderly transition and integration process in connection with the Merger and the other Contemplated Transactions in order to minimize the disruption to, and preserve the value of, the business of the Surviving Corporation and its Subsidiaries.
(d) All non-public or otherwise confidential information regarding any Acquired Company obtained by Parent or its Representatives pursuant to this Section 4.1 shall be kept confidential in accordance with the Confidentiality Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Lockheed Martin Corp), Merger Agreement (Aerojet Rocketdyne Holdings, Inc.)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the a) The Company shall, and shall cause the respective Representatives of the Acquired Corporations Companies to: (ai) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired CorporationsCompanies' Representatives, personnel and assets Assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (bii) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies and their financial condition, as Parent may reasonably request. During ; (iii) provide to Parent all information concerning the Pre-Closing PeriodAcquired Companies' business that Parent reasonably requests and (iv) permit Parent and its Representatives to contact customers, suppliers and employees of the Company shall, and shall cause the Representatives of each businesses of the Acquired Corporations toCompanies. With respect to clause (iv), permit Parent's senior officers to meet, upon reasonable notice Parent and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements shall adopt a protocol reasonably acceptable to both parties pursuant to which Parent and the internal controls of its Representatives will operate in contacting the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Companies' customers, suppliers and the rules and regulations relating theretoemployees. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: Company shall furnish promptly to Parent a copy of each report, schedule, registration statement and other document to be filed by the Company with the SEC, and allow Parent and its counsel reasonable opportunity to review and comment on such report, schedule, EXECUTION VERSION registration statement or other document (including any exhibit or amendment thereto) prior to the filing thereof with the SEC. No investigation heretofore conducted or conducted pursuant to this Section 5.1(a) shall affect any representation or warranty made by the parties hereunder.
(b) In addition, the Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, if it becomes aware of (i) any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect; (ii) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject failure by it to applicable Antitrust Laws, any notice, report or other document filed comply with or sent satisfy in any material respect any covenant, condition or agreement to any Governmental Body on behalf be complied with or satisfied by it under this Agreement; (iii) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the Acquired Corporations conditions set forth in connection with Annex I or Section 7 impossible or unlikely or that has had or would reasonably be expected to have a Material Adverse Effect or (iv) the commencement of any litigation or Proceeding against or affecting this Agreement, the Offer or the Merger or any which if adversely determined could have a Material Adverse Effect; provided, however, that the delivery of notice pursuant to this Section 5.1(b) shall not affect the remedies available hereunder to the party receiving such notice or the representations or warranties of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company parties or the Company's Representatives with copies of any material notice, report or other document filed with or sent conditions to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any obligations of the other Contemplated Transactionsparties.
Appears in 2 contracts
Sources: Merger Agreement (Superior Consultant Holdings Corp), Merger Agreement (Affiliated Computer Services Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 8.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations Company to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' Company’s Representatives, personnel personnel, and assets and to all existing books, records, Tax Returns, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired CorporationsCompany; and (b) promptly provide Parent and Parent's ’s Representatives with such all reasonably requested information regarding the business of the Company, including copies of the existing books, records, Tax Returns, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations Company, and with such additional financial, operating and other data and information regarding the Company, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, supervision of appropriate personnel of the Company shalland in such a manner as not to unreasonably interfere with the normal operation of the business of the Company. Nothing herein shall require the Company to disclose any information to Parent if such disclosure would, in its reasonable discretion and after notice to Parent) (i) jeopardize any attorney-client or other legal privilege (so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), or (ii) contravene any applicable Legal Requirement; provided, however, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent to the extent reasonably required for the purpose of complying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall cause the instruct Parent’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoingConfidentiality Agreement dated July 24, during the Pre-Closing Period: (i) 2012, as amended, between the Company shall promptly provide and Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions“Confidentiality Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Trius Therapeutics Inc), Merger Agreement (Cubist Pharmaceuticals Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or the date of termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: to (to the extent permitted under applicable Legal Requirements): (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order with respect to enable the satisfaction by Parent to satisfy or the Company of its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. All information exchanged pursuant to this Section 5.1 shall be subject to the provisions of the Confidentiality Agreement. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent (upon its reasonable request and to the extent permitted under applicable Legal Requirements) with copies of:
(i) all material operating and financial reports prepared by the Acquired Corporations for the Company’s senior management, including: (A) upon copies of the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of shareholders’ equity and statements of cash flows; and (B) subject copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company’s senior management;
(ii) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits shareholders;
(iii) any material notice, correspondence, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Material Contract or sent to any of the Acquired Corporations by any party to any Material Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any such Contract and that is of the type sent in the ordinary course of business and in accordance with past practices);
(iv) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Offer or the Merger or any of the other Contemplated Transactions; and and
(iiv) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
Appears in 2 contracts
Sources: Merger Agreement (Applied Materials Inc /De), Merger Agreement (Applied Materials Inc /De)
Access and Investigation. (a) During the period commencing on from the date of this Agreement to the Closing Date, Seller and ending as of its officers, employees, counsel, accountants and other authorized representatives ("Representatives") will, (i) afford Buyer and its Representatives reasonable access to Seller's (with respect to the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Business) and each Subsidiary's senior management personnel, the Company shallproperties, contracts, books, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating data, (ii) permit access to the Acquired Corporations; or furnish copies to Buyer and its Representative (as requested by Buyer, provided that if copies are to be furnished it will be furnished at Buyer's expense) of all such contracts, books and records, and other existing documents and data as Buyer may reasonably request, and (biii) provide Parent furnish Buyer and Parent's its Representatives with such copies of the existing booksadditional financial, recordsoperating, Tax Returns, work papers and other documents data and information relating to the Acquired Corporations as Parent Buyer may reasonably request. During , including, without limitation periodically reporting to Buyer the Pre-Closing Period, the Company shall, and shall cause the Representatives of each status of the Acquired Corporations tobusiness, permit Parent's senior officers to meet, upon reasonable notice operations and during normal business hours, with the chief financial officer and other officers finances of the Company responsible for Business. Seller shall also inform Buyer (upon its request) of any facts or circumstances of which Seller has knowledge which calls into question the Company's financial statements collectibility of any Accounts Receivable, adequacy of the bad debt reserves that exist as of the Closing Date and the internal controls adequacy of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇ ▇▇▇ Act and Reserve. No information or knowledge obtained in any investigation pursuant to this SECTION 6.1 shall affect or be deemed to modify any representation or warranty contained herein or the rules and regulations relating thereto. Without limiting conditions to the generality of any obligations of the foregoingparties to consummate the Consummated Transactions. Buyer agrees that from the date hereof until the Closing, during Buyer will not discuss or negotiate any terms of employment with any employees of the Pre-Subsidiaries (other than disclosing to any such employee the obligations of Buyer pursuant to SECTION 8.10(b) hereof), without prior approval by Seller's President or Chairman.
(b) From the date hereof through the Closing Period: Date, Buyer agrees that if it becomes aware, in the course of its due diligence examination or otherwise, of a material Breach of Seller's representations, warranties, covenants or agreements contained herein, Buyer will promptly notify Seller thereof; provided, however, this SECTION 6.1(b) shall in no manner (i) obligate Buyer to affirmatively inquire or research whether a Breach by Seller has occurred or (ii) limit or waive the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations conditions set forth in SECTIONS 10.1 and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger 10.2 herein or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the CompanyBuyer's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsrights hereunder.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (K Tel International Inc), Purchase and Sale Agreement (Platinum Entertainment Inc)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of through the earlier to occur of the Effective Time or and the termination of this Agreement in accordance with its terms (the "“Pre-Closing Period"”), subject to applicable Legal Requirements and antitrust laws, data privacy/protection Legal Requirements and regulations relating to the exchange of information, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: Companies to (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours upon reasonable advance notice to the respective Representatives, personnel and assets of the Acquired Companies and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations' Companies, and (ii) provide or make available Parent and Parent’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies, as Parent may reasonably request. Without limiting the generality of the foregoing, during the Pre-Closing Period, the Company shall promptly provide or make available to Parent with copies of (A) all material operating and financial reports prepared by the Company for the Company’s senior management, including if any (1) copies of the unaudited monthly consolidated balance sheets of the Company and its consolidated subsidiaries and the related unaudited monthly consolidated statements of operations, statements of shareholders’ equity and statements of cash flows, (2) copies of any sales forecasts, marketing plans, development plans, write-off reports, hiring reports and capital expenditure reports prepared for the Company’s senior management, and (3) to the extent not otherwise publicly available in the Company’s filings with the SEC on the SEC website, copies of the audited annual consolidated financial statements of the Company and its consolidated subsidiaries, (B) any written materials or communications sent by or on behalf of the Company to its shareholders, (C) any material notice, document or other communication sent by or on behalf of any of the Acquired Companies to any party to any Acquired Company Contract or sent to any of the Acquired Companies by any party to any Acquired Company Contract (other than any communication that relates solely to commercial transactions between the Company and the other party to any such Acquired Company Contract and that is of the type sent in the ordinary course of business and consistent with past practices), (D) any notice, report or other document filed with or delivered or sent to any Governmental Body in connection with the Merger or any of the other transactions contemplated by this Agreement, and (E) any material notice, report or other document received by any of the Acquired Companies from any Governmental Body. Any investigation conducted pursuant to the access contemplated by this Section 5.1 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Acquired Companies or damage or destroy any material property or assets of the Acquired Companies.
(b) During the Pre-Closing Period, subject to applicable antitrust laws and regulations relating to the exchange of information, Parent shall, and shall cause its Representatives to (i) provide the Company and the Company’s Representatives with reasonable access to Parent’s Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; Parent, and (bii) provide Parent the Company and Parent's the Company’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to Parent, and with such additional financial, operating and other data and information regarding Parent, as the Acquired Corporations as Parent Company may reasonably request. During .
(c) Nothing in this Agreement shall limit the Pre-Closing Periodconfidentiality provisions of the Confidentiality Agreement dated September 24, 2010 between the Company shalland Parent (the “Confidentiality Agreement”), which provisions shall remain in full force and effect in accordance with their terms. In addition, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parentagrees that any business, unaudited monthly consolidated balance sheets of marketing, technical, scientific or other information disclosed by the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report Companies or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations their Representatives in connection with the Merger Merger, which, at the time of disclosure, is designated as confidential (or any like designation) shall be used, disclosed or copied only for the purposes of, and only in accordance with, this Agreement and the consummation of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Merger. Parent shall promptly provide use, at a minimum, the same degree of care as it uses to protect its own confidential information of a similar nature, but no less than reasonable care, to prevent the unauthorized use, disclosure or publication of such confidential information of the Acquired Companies.
(d) Promptly following the execution of this Agreement, the Company or will make available any written Acquisition Proposal received by the Company's Representatives with copies Company during the period beginning January 1, 2010 and ending on the date of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Voltaire Ltd.), Merger Agreement (Mellanox Technologies, Ltd.)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), upon reasonable advance written notice to the Company, the Company shall, and shall cause the respective its Representatives, its Subsidiaries and its Subsidiaries’ Representatives of the Acquired Corporations to: (ai) provide Parent and Parent's ’s Representatives with reasonable access during the normal business hours of the Company to the Acquired Corporations' Company’s Representatives, personnel personnel, Real Property, officers, employees, agents, offices and other properties, and assets and to all existing books, records, Contracts, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; Company and its Subsidiaries, and (bii) promptly provide Parent and Parent's ’s Representatives with such all reasonably requested information regarding the business of the Company and its Subsidiaries, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company and its Subsidiaries, and with any available or reasonably producible additional financial, operating and other data and information regarding the Company and its Subsidiaries, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, supervision of appropriate personnel of the Company shalland in such a manner as not to unreasonably interfere with the normal operation of the business of the Company and its Subsidiaries. Nothing herein shall require the Company to disclose (A) any information concerning Acquisition Proposals, which shall be governed by Section 5.4, (B) any information regarding the deliberations of the Company Board with respect to this Agreement or the transactions contemplated hereby or any similar transaction or transactions with any other Person, or any materials provided to the Company Board in connection therewith, or (C) any information, that in the reasonable good faith judgement of the Company would (i) jeopardize any attorney-client or other legal privilege (so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Law, fiduciary duty or Contract entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party, so long as the Company has used commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Law, agreement or duty), or (iii) unreasonably disrupt the operations of the Company and its Subsidiaries; provided, further, that information described in the foregoing clause (C)(i), shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company determines doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 5.3 to Parent and its Representatives, Parent shall comply with, and shall cause the Parent’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and Confidentiality Agreement. All requests for information made pursuant to this Section 5.3 shall be directed to the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report executive officer or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or Person designated by the Company's Representatives with copies of any material notice. No investigation shall affect the Company’s representations and warranties contained herein, report or other document filed with limit or sent otherwise affect the remedies available to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsPurchaser pursuant to this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Altair Engineering Inc.), Merger Agreement (Datawatch Corp)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 8.1 (the "“Pre-Closing Period"”), the Company Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company Acquired Corporations shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer of the Company and other officers of the Company Acquired Corporations responsible for the Company's Acquired Corporations’ financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretothereto following the Effective Time. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company Acquired Corporations shall promptly provide Parent with copies of: :
(Ai) upon all material operating and financial reports prepared by the request Acquired Corporations for the Company’s senior management, including, if otherwise prepared by the Acquired Corporations, copies of Parent, the unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of shareholders’ equity and statements of cash flows; ;
(ii) any written materials or communications sent by or on behalf of the Company to its shareholders;
(iii) any material notice, document or other communication (other than any communication that relates solely to routine commercial transactions and that is of the type sent in the ordinary course of business and consistent with past practices) sent by or on behalf of any of the Acquired Corporations to any party to any Company Contract that constitutes a Material Contract or sent to any of the Acquired Corporations by any party to any Company Contract that constitutes a Material Contract;
(Biv) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Offer or the Mergers or any of the other Contemplated Transactions; and and
(iiv) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
Appears in 2 contracts
Sources: Merger Agreement (Sonic Solutions/Ca/), Agreement and Plan of Merger and Reorganization (Rovi Corp)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of Date until the earlier of the First Effective Time or and the termination of this Agreement pursuant to Section 8.1 (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations Corporations, upon reasonable advanced written notice, to: (ai) provide Parent (and Parent's Representatives ’s Representatives) with reasonable access during normal business hours to the Acquired Corporations' all of their respective Representatives, personnel senior management personnel, properties and assets and to all existing books, records, Contracts, Tax Returns, work papers and other documents and information relating Company Employee Plans, files related to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax ReturnsIntellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations and (ii) promptly provide Parent (and Parent’s Representatives) with all reasonably requested (and readily available) information regarding the business of the Acquired Corporations, including copies of the existing books, records, Contracts, Tax Returns, Company Employee Plans files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations (in the case of Parent), and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: request (i) the Company shall promptly provide Parent with including copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of all material operating and financial reports prepared by the Acquired Corporations and for the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and Company’s senior management (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body Entity on behalf of Parent or Merger Sub any of the Acquired Corporations in connection with the Merger Mergers or any of the Transactions, other Contemplated Transactionsthan exhibits or attachments to their respective HSR Notification and Report forms, which may be withheld from Parent, and (C) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Entity); provided, however, that any such access shall be conducted at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations and shall be subject to the Confidentiality Agreement. Notwithstanding anything herein to the contrary, no Acquired Corporation shall be required to disclose (or provide access to) any information to Parent or any of its Subsidiaries (or any of its or their Representatives) if such disclosure or access would be reasonably likely to (w) jeopardize any attorney-client or other legal privilege, (x) contravene any applicable Laws, (y) violate any obligation of any Acquired Corporation with respect to confidentiality or privacy or (z) materially interfere with the conduct of any Acquired Corporation’s business. The Company shall use its reasonable best efforts make appropriate substitute access and disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.
(b) During the Pre-Closing Period, Parent shall, and shall cause each of Parent’s Subsidiaries, upon reasonable advanced written notice, to: (i) provide the Company (and Company’s Representatives) with reasonable access during normal business hours to its Representatives, senior management personnel, properties and assets and to existing books, records, Contracts, Tax Returns, Parent Employee Plans, files related to Intellectual Property Rights, work papers and other documents and information relating to Parent and its Subsidiaries and (ii) promptly provide the Company (and such other Party’s Representatives) with all reasonably requested (and readily available) information regarding the business of Parent and its Subsidiaries, including copies of the existing books, records, Contracts, Tax Returns, Parent Employee Plans, files related to Intellectual Property Rights, work papers and other documents and information relating to Parent and its Subsidiaries and with such additional financial, operating and other data and information regarding the Parent and its Subsidiaries (in the case of the Company), as the Company may reasonably request; provided, however, that any such access shall be conducted at a reasonable time, under the supervision of appropriate personnel of Parent and in such a manner as not to unreasonably interfere with the normal operation of the business of Parent or its Subsidiaries, and shall be subject to the Confidentiality Agreement. Notwithstanding anything herein to the contrary, neither Parent nor its Subsidiaries shall be required to disclose (or provide access to) any information to any Acquired Corporation (or any of such Acquired Corporation’s Representatives), if such disclosure or access would be reasonably likely to (w) jeopardize any attorney-client or other legal privilege, (x) contravene any applicable Laws, (y) violate any obligation of Parent or any of its Subsidiaries with respect to confidentiality or privacy or (z) materially interfere with the conduct of the business of Parent or any of its Subsidiaries. Parent shall use its reasonable best efforts make appropriate substitute access and disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.
Appears in 2 contracts
Sources: Merger Agreement (Primo Water Corp), Merger Agreement (Cott Corp /Cn/)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of Date until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 9.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company and its directors, employees and officers shall, and the Company shall cause the respective direct its other Representatives of the Acquired Corporations to: Company, (a) to provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' RepresentativesCompanies’ officers, personnel employees, other personnel, and assets and to all existing booksbooks and records (provided, recordshowever, Tax Returnsthat any such access shall be conducted at Parent’s sole expense, work papers at a reasonable time, under the supervision of appropriate personnel of the Company and other documents and information relating in such a manner as not to unreasonably interfere with the Acquired Corporations; normal operation of the business of the Company) and (b) provide to furnish to Parent such financial and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers operating data and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During , but in the Pre-Closing Periodcase of clauses (a) and (b), solely to the extent that such access or furnishing of data or other information is related to planning for integration or operation of the Company shallfollowing the Closing or the satisfaction of any condition to Closing. The foregoing notwithstanding, nothing herein shall require the Company to permit any inspection or testing, or to disclose any information, that in the reasonable judgment of the Company would be materially detrimental to the Company’s business or operations nor shall anything herein require the Company to disclose any information to Parent if (i) such disclosure would, in the Company’s reasonable discretion (x) jeopardize any attorney-client or other legal privilege (so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto) or (y) contravene any applicable Law (including Antitrust Law) or fiduciary duty or (ii) in the Company’s reasonable discretion, such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Information disclosed pursuant to this Section 6.1 shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company reasonably determines doing so is required for the purpose of complying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 6.1, Parent shall comply with, and shall cause the instruct Parent’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇Confidentiality Agreement, dated as of June 1, 2021, by and between the Company and Parent (the “Non-▇▇▇▇▇ Act and the rules and regulations relating theretoDisclosure Agreement”). Without limiting the generality of any All requests for information made pursuant to this Section 6.1 shall be directed to an executive officer of the foregoing, during the Pre-Closing Period: (i) Company or other person designated by the Company shall promptly provide Parent with copies of: (A) upon in writing. Nothing in this Section 6.1 will be construed to require the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Company or any of the other Contemplated Transactions; and (ii) subject its Representatives to applicable Antitrust Lawsprepare any reports, Parent shall promptly provide the Company or the Company's Representatives with copies of any material noticeanalyses, report appraisals, opinions or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsinformation.
Appears in 2 contracts
Sources: Merger Agreement (Flexion Therapeutics Inc), Merger Agreement (Pacira BioSciences, Inc.)
Access and Investigation. During (a) Subject to Section 5.1(b), during the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During Subject to Section 5.1(b), during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order with respect to enable the satisfaction by Parent to satisfy or the Company of its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. All information exchanged pursuant to this Section 5.1 shall be subject to the provisions of the Confidentiality Agreement. Without limiting the generality of any of the foregoingforegoing and subject to Section 5.1(b), during the Pre-Closing Period: (i) , the Company shall promptly provide Parent upon its reasonable request with copies of:
(i) all material operating and financial reports prepared by the Acquired Corporations for the Company’s senior management, including: (A) upon copies of the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of stockholders’ equity and statements of cash flows; and (B) subject copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company’s senior management;
(ii) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits stockholders;
(iii) any material notice, correspondence, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Material Contract or sent to any of the Acquired Corporations by any party to any Material Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any such Contract and that is of the type sent in the ordinary course of business and consistent with past practices);
(iv) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Offer or the Merger or any of the other Contemplated Transactions; and and
(iiv) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the Acquired Corporations from any Governmental Body.
(b) Notwithstanding the foregoing provisions in Section 5.1(a), the Company may restrict or otherwise prohibit access to any documents or information to the extent that: (i) any applicable Legal Requirements (including any laws relating to security clearances) require the Company to restrict or otherwise prohibit access to such documents or information; (ii) access to such documents or information would waive any attorney-client privilege, work product doctrine or other Contemplated Transactionsapplicable privilege applicable to such documents or information; (iii) access to a Contract to which any Acquired Corporation is a party as of the date of this Agreement or otherwise bound as of the date of this Agreement would violate or cause a default under, or give a third party the right to terminate or accelerate the rights under, such Contract; or (iv) unless otherwise required to be provided pursuant to Section 5.3, such documents or information relate directly to any Acquisition Proposal or Acquisition Inquiry; provided that, in the case of clauses “(i),” “(ii)” and “(iii),” the Company shall: (A) give reasonable notice to Parent of the fact that it is restricting or otherwise prohibiting access to such documents or information pursuant to this Section 5.1(b); (B) inform Parent with sufficient detail of the reason for such restriction or prohibition; and (C) cause the Acquired Corporations to use commercially reasonable efforts to cause the documents or information that are subject to such restriction or prohibition to be provided in a manner that would not reasonably be expected to violate such restriction or prohibition.
(c) Any investigation conducted pursuant to the access contemplated by this Section 5.1 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Acquired Corporations or create a material risk of damage or destruction to any material property or material assets of the Acquired Corporations. Any access to the Company’s properties shall be subject to the term of the applicable Company Leases, the Company’s reasonable security measures and insurance requirements and shall not include the right to perform invasive testing.
Appears in 2 contracts
Sources: Merger Agreement (Riverbed Technology, Inc.), Merger Agreement (Opnet Technologies Inc)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement in accordance with Article 8 (the "“Pre-Closing Period"”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shalland Parent shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (a) provide Parent and Parent's the Representatives of the other party with reasonable access during normal business hours to the Acquired Corporations' Representativesits personnel, personnel tax and accounting advisers and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany and in such manner as shall not unreasonably interfere with the business or operations of the party providing such access, as the case may be; and (b) provide Parent and Parent's the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Acquired Corporations Company, as Parent the case may reasonably requestbe. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations Company Entities to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer Chief Financial Officer and other officers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations Company Entities to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its post-Closing obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. During the Pre-Closing Period, Parent shall, and shall cause the Representatives of each of Parent to, permit the Company’s senior officers to meet, upon reasonable notice and during normal business hours, with the Chief Financial Officer and other officers of Parent responsible for the Parent’s financial statements and the internal controls of the Parent Entities to discuss such matters as the Company may deem necessary or appropriate in order to enable post-closing management of Parent and the Surviving Corporation to satisfy its post-Closing obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust LawsLegal Requirements, the Company and Parent shall each promptly provide the other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Company Entities or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Precision Therapeutics Inc.), Merger Agreement (Skyline Medical Inc.)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement or the Effective Time (the "“Pre-Closing Period"”), subject to applicable Legal Requirements and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shalland Parent shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (a) provide Parent and Parent's the Representatives of the other party with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany, as the case may be; and (b) provide Parent and Parent's the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Acquired Corporations Company, as Parent the case may reasonably requestbe. During the Pre-Closing Period, the Company and Parent shall, and shall cause the their respective Representatives of each of the Acquired Corporations to, permit Parent's cause their senior officers to meet, upon reasonable notice and during normal business hours, with the their respective chief financial officer officers and other officers of the Company responsible for the Company's ’s and Parent’s financial statements and the internal controls of the Acquired Corporations controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under comply following the Closing with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without Subject to Section 5.7 and without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company and Parent shall promptly provide Parent the other with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired API Corporations or the ▇▇▇▇ Corporations, respectively, in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject Transactions a reasonable time in advance of the filing or sending of such document in order to applicable Antitrust Laws, Parent permit a review thereof. Nothing herein shall promptly provide require the Company or the Company's Representatives with copies Parent to disclose any information if such disclosure would jeopardize any attorney-client privilege or contravene any applicable Legal Requirement or binding agreement entered into prior to the date of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger this Agreement or any non-disclosure or confidentiality agreement entered in the ordinary course of business after the other Contemplated Transactionsdate of this Agreement; provided that the parties shall cooperate to disclose such information to the extent possible without jeopardizing such privilege or contravening such Legal Requirements or such agreements. All information exchanged pursuant to this Section 4.1 shall be subject to the Confidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Advanced Photonix Inc), Merger Agreement (Luna Innovations Inc)
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause its Subsidiaries and the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and personnel, properties, assets and to all existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide furnish promptly to Parent and Parent's ’s Representatives with such copies of the existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations’ business, properties, prospects and personnel, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, under the supervision of appropriate personnel of the Company, and in such a manner as to not to interfere unreasonably with the normal operation of the business of the Company. During All requests for information made pursuant to this Section 5.1(a) shall be directed to the executive officer or other Person designated by the Company. In addition, during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the other Acquired Corporations to, permit (i) furnish, as promptly as reasonably practicable, to Parent a copy of all monthly and other interim financial statements as the same become available, (ii) cause one or more of its designated Representatives to confer on a reasonable basis with designated Representatives of Parent to report operational matters of materiality and the general status of ongoing operations, including the status of customer relations, order backlog and future plans to service customer needs, and (iii) cooperate with Parent as it reasonably requests to assist Parent in planning to implement Parent's senior officers to meet’s plans for conducting the combined operations of Parent and its Subsidiaries, upon reasonable notice and during normal business hours, together with the chief financial officer Acquired Corporations, after the Effective Time; provided, however, that in no event shall any action described in clauses (i), (ii) and other officers (iii) interfere unreasonably with the normal operation of the business of the Company. With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall instruct the applicable Representatives of Parent to comply with, all of its confidentiality and non-use obligations under the Confidentiality Agreement dated September 24, 2014, between the Company and Parent (the “Confidentiality Agreement”). Notwithstanding anything herein to the contrary, Parent, Merger Sub or Merger LLC shall not, and shall cause their respective Representatives not to, contact any customer or vendor of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Mergers or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or transactions contemplated by this Agreement without the Company's Representatives with copies of any material notice’s prior written consent (which consent shall not be unreasonably withheld, report conditioned or other document filed with or sent to any Governmental Body on behalf of Parent or delayed), and Parent, Merger Sub in connection with the and Merger or LLC acknowledge and agree that any such contact shall be arranged and supervised by Representatives of the other Contemplated TransactionsCompany.
Appears in 2 contracts
Sources: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Access and Investigation. During the period commencing on (a) Between the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Date, and upon reasonable notice, the Company shallwill, and shall the Seller will cause the respective Company, its Subsidiaries and its Representatives of the Acquired Corporations to: , (a) provide Parent afford Buyer and Parent's its Representatives with reasonable access (collectively, “Buyer Group”) full and free access, during normal regular business hours hours, to the Acquired Corporations' RepresentativesCompany’s and its Subsidiaries’ personnel, personnel properties (including subsurface testing), Contracts, Licenses, books and assets and to all existing books, records, Tax Returns, work papers records and other documents and information relating data, such rights of access to be exercised in a manner that does not unreasonably interfere with the Acquired Corporationsoperations of the Company and its Subsidiaries; and (b) provide Parent and Parent's Representatives furnish Buyer Group with such copies of the existing booksall such Contracts, recordsLicenses, Tax Returns, work papers books and records and other documents and information relating to the Acquired Corporations data as Parent Buyer may reasonably request. During the Pre-Closing Period; (c) furnish Buyer Group with such additional financial, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer operating and other officers relevant data and information as Buyer may reasonably request; (d) provide reasonable access to the Significant Suppliers and Significant Customers of the Company responsible for and its Subsidiaries in a manner as shall be mutually agreeable between Buyer and the Company's financial statements and the internal controls ; (e) make available (i) all Representatives of the Acquired Corporations Company and its Subsidiaries for discussion of the Company’s businesses, properties or personnel and (ii) all Company Employees for discussion of the post-Closing employment arrangements with Buyer as the Buyer may reasonably request; and (f) otherwise cooperate and assist, to discuss such matters as Parent may deem necessary the extent reasonably requested by Buyer, with Buyer’s investigation of the properties, assets and financial condition related to the Company and its Subsidiaries. No investigation pursuant to this Section 5.1 or appropriate in order to enable Parent to satisfy its obligations under otherwise shall affect any representations, warranties, covenants or agreements of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and Company or the rules and regulations relating thereto. Seller set forth herein.
(b) Without limiting the generality of any Section 5.1(a), prior to the Closing Date, the Company shall deliver to Buyer within fifteen (15) days after the last day of each calendar month, an unaudited balance sheet for the Company and its Subsidiaries as of the foregoingend of such month and the related statements of income and cash flow for the Company and its Subsidiaries for such monthly period, during prepared by the Company and certified by the Company’s Chief Financial Officer (the “Pre-Closing Period: (i) Financial Statements”). The Pre-Closing Financial Statements shall be prepared in accordance with the books and records of the Company shall promptly provide Parent with copies of: (A) upon and its Subsidiaries and fairly and accurately present the request of Parent, unaudited monthly consolidated balance sheets financial condition of the Acquired Corporations Company and its Subsidiaries as of the dates indicated and the related unaudited monthly consolidated statements results of operationsoperations of the Company and its Subsidiaries for the respective periods indicated, andand shall be prepared in accordance with GAAP, if preparedexcept for the absence of complete footnote disclosure as required by GAAP, statements of cash flows; and (B) subject to applicable Antitrust Lawschanges resulting from normal year-end audit adjustments, which adjustments shall not in any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsevent be material.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Homeland Security Capital CORP), Stock Purchase Agreement (DJSP Enterprises, Inc.)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement in accordance with Section 7 or the Acceptance Time (the "“Pre-Closing Period"”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance written notice to the Company the Company shall, and shall cause the respective Representatives of the Acquired Corporations its Subsidiaries to: (a) provide the Representatives of Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating of the Company or any of its Subsidiaries, in each case as reasonably requested by Parent; provided, that any such access shall be conducted at a reasonable time and in such a manner as not to interfere unreasonably with the Acquired Corporationsoperation of any business conducted by the Company or any of its Subsidiaries; and (b) provide the Representatives of Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to of the Acquired Corporations Company and its Subsidiaries as Parent may reasonably requestrequested by Parent. During the Pre-Closing Period, the Company and the Parent shall, and shall cause the their respective Representatives of each of the Acquired Corporations to, permit Parent's cause their senior officers to meet, upon reasonable notice and during normal business hours, with the their respective chief financial officer officers and other officers of the Company responsible for the Company's ’s and Parent’s financial statements and the internal controls of the Acquired Corporations controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoappropriate. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: Period (ibut subject to applicable Legal Requirements, and except in the case of any document relating to any Acquisition Proposal, Superior Offer or Triggering Event), (x) the Company and Parent shall each promptly provide Parent the other with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Target Companies or Parent or Purchaser in connection with the Merger or any of the other Contemplated TransactionsTransactions a reasonable time in advance of the filing or sending of such document in order to permit a review thereof, and (y) schedule a weekly meeting (either in person or by phone or video link) of the senior management of the Target Companies with Representatives of Parent to discuss any topics material to the operation of the Target Companies that arose in the prior week or are reasonably expected to arise in the coming week. Nothing herein shall require the Company or Parent to disclose any information if such disclosure would jeopardize any attorney-client privilege or contravene any applicable Legal Requirement or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which a Target Company is a party); and provided that the parties shall, to the extent reasonably practicable, disclose such information without jeopardizing such privilege or contravening such Legal Requirements or binding agreements. Nothing in this Section 4.1 shall require the Company to permit any inspection of, or to disclose: (i) any information concerning Acquisition Proposals, which shall be governed by Section 4.4, (ii) any information regarding the deliberations of the Company Board or the Special Committee with respect to the Contemplated Transactions or any similar transaction or transactions with any other person, the entry into the Agreement, or any materials provided to the Company Board or Special Committee in connection therewith, or (iii) materials prepared by the Company’s, the Company Board’s, or any Special Committee’s financial, accounting, or legal advisors with respect to the Contemplated Transactions or which is subject to applicable Antitrust Laws, Parent an attorney/client or an attorney work product privilege. All information exchanged pursuant to this Section 4.1 shall promptly provide be subject to the Confidentiality Agreement. No access or information pursuant to this Section 4.1 shall affect or be deemed to modify any representation or warranty made or deemed made by the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsherein.
Appears in 2 contracts
Sources: Employment Agreement (AutoWeb, Inc.), Merger Agreement (AutoWeb, Inc.)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or the termination of date upon which this Agreement is validly terminated (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: to (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; Corporations and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: (i) all material operating and financial reports prepared by the Acquired Corporations for the Company's senior management, including (A) upon copies of the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of stockholders' equity and statements of cash flows; flows and (B) subject copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company's senior management; (ii) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits stockholders; (iii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices); (iv) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and (iiv) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsAcquired Corporations or received by any of the Acquired Corporations from any Governmental Body.
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Clare Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall use reasonable best efforts to cause the respective Representatives of the Acquired Corporations Companies to, upon reasonable prior notice and during normal business hours: (ai) provide Parent and Parent's its Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (bii) provide Parent and Parent's its Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies, as Parent may reasonably requestrequest (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Acquired Companies). During the Pre-Closing Period, the Company shall, and shall use reasonable best efforts to cause the Representatives of each of the Acquired Corporations Companies to, permit Parent's senior ’s officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under consummate the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoContemplated Transactions. Without limiting the generality of any of the foregoing, but subject to applicable Legal Requirements, during the Pre-Closing Period: (i) , the Company shall reasonably promptly provide Parent with copies of: :
(Aa) upon the request of Parent, unaudited monthly consolidated balance sheets any written materials or communications sent by or on behalf of the Acquired Corporations Company to its Members (other than those filed with the SEC and available on ▇▇▇▇▇);
(b) any written materials prepared for the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and Company’s New Products Committee;
(Bc) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Companies in connection with the Merger or any of the other Contemplated Transactions; and and
(iid) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to received by any of the Acquired Companies from any Governmental Body on behalf Body. Notwithstanding the foregoing, the Company shall not be required to permit such access or make such disclosure, to the extent it determines, after consultation with outside counsel, that such disclosure or access would reasonably be likely to (i) violate the terms of any confidentiality agreement or other Company Contract with a third party, in each case, that was in effect prior to the execution of this Agreement (provided that the Company shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure or develop an alternative method of providing such information to Parent); (ii) result in the loss of any attorney-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege or develop an alternative method of providing such information to Parent); (iii) violate any Legal Requirement (provided that the Company shall use its reasonable best efforts to provide such access or make such disclosure in a manner that does not violate such Legal Requirement or develop an alternative method of providing such information to Parent); or (iv) require access to competitively or commercially sensitive information or information relating to the Acquired Companies’ analysis or consideration of the Contemplated Transactions or the valuation of the Acquired Companies. Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure to Parent pursuant to this Section 4.1 to the extent such access or Merger Sub in connection with information is reasonably pertinent to a litigation where the Merger Company or any of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other Contemplated Transactionshand, are adverse parties. All information exchanged pursuant to this Section 4.1 shall be subject to the Confidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement, Agreement and Plan of Merger (Fortress Investment Group LLC)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as hereof through the Closing of the earlier of the Effective Time or the termination of this Agreement Merger (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations Company and Subsidiaries to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies and their financial condition, as Parent may reasonably request. During ; and (c) fully cooperate with Parent in its reasonable investigation of the Pre-Closing Period, the Company shall, and shall cause the Representatives of each businesses of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoCompanies. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: , the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by the Company during the Pre-Closing Period with the SEC, and (ii) all other information concerning its business, properties and personnel as Parent may reasonably request. In addition, the Company shall promptly provide during the Pre-Closing Period give prompt written notice to Parent, and the Parent with copies of: shall during the Pre-Closing Period give prompt written notice to the Company, if it becomes aware of (A) upon the request of Parentany representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject the failure by it to applicable Antitrust Laws, any notice, report or other document filed comply with or sent satisfy in any material respect any covenant, condition or agreement to any Governmental Body on behalf be complied with or satisfied by it under this Agreement, (C) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the Acquired Corporations conditions set forth in connection with the Merger Annex I impossible or any of the other Contemplated Transactions; unlikely or that has had or would reasonably be expected to have a Company Material Adverse Effect, and (iiD) subject to applicable Antitrust Lawsthe commencement of any litigation or Proceeding against the Company, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.Acquisition Co.
Appears in 2 contracts
Sources: Merger Agreement (Black Box Corp), Merger Agreement (Norstan Inc)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement in accordance with Article 8 (the "“Pre-Closing Period"”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shalland Parent shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (a) provide Parent and Parent's the Representatives of the other party with reasonable access during normal business hours to the Acquired Corporations' Representativesits personnel, personnel tax and accounting advisers and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany and in such manner as shall not unreasonably interfere with the business or operations of the party providing such access, as the case may be; and (b) provide Parent and Parent's the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Acquired Corporations Company, as Parent the case may reasonably requestbe. During the Pre-Pre- Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations Company Entities to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer Chief Financial Officer and other officers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations Company Entities to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its post-Closing obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. During the Pre-Closing Period, Parent shall, and shall cause the Representatives of each of Parent to, permit the Company’s senior officers to meet, upon reasonable notice and during normal business hours, with the Chief Financial Officer and other officers of Parent responsible for the Parent’s financial statements and the internal controls of the Parent Entities to discuss such matters as the Company may deem necessary or appropriate in order to enable post-closing management of Parent and the Surviving Corporation to satisfy its post-Closing obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust LawsLegal Requirements, the Company and Parent shall each promptly provide the other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Company Entities or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 2 contracts
Sources: Merger Agreement (Precision Therapeutics Inc.), Merger Agreement
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement in accordance with Section 8 or the Acceptance Time (the "“Pre-Closing Period"”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shall, and shall cause the respective Representatives of the Acquired Corporations its Subsidiaries to: (a) provide the Representatives of Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporationssuch Entity or any of its Subsidiaries, in each case as reasonably requested by Parent; and (b) provide the Representatives of Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations such Entity and its Subsidiaries as Parent may reasonably requestrequested by Parent. During the Pre-Closing Period, the Company and the Parent shall, and shall cause the their respective Representatives of each of the Acquired Corporations to, permit Parent's cause their senior officers to meet, upon reasonable notice and during normal business hours, with the their respective chief financial officer officers and other officers of the Company responsible for the Company's ’s and Parent’s financial statements and the internal controls of the Acquired Corporations controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoappropriate. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: Period (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) but subject to applicable Antitrust LawsLegal Requirements, and except in the case of any document relating to any Acquisition Proposal, Superior Offer or Triggering Event), the Company and Parent shall each promptly provide the other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Tetraphase Companies or Parent or Purchaser in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject Transactions a reasonable time in advance of the filing or sending of such document in order to applicable Antitrust Laws, Parent permit a review thereof. Nothing herein shall promptly provide require the Company or Parent to disclose any information if such disclosure would jeopardize any attorney-client privilege or contravene any applicable Legal Requirement or binding agreement entered into prior to the Company's Representatives with copies date of any material notice, report this Agreement; provided that the parties shall cooperate to disclose such information without jeopardizing such privilege or other document filed with contravening such Legal Requirements or sent binding agreements. All information exchanged pursuant to any Governmental Body on behalf of Parent or Merger Sub in connection with this Section 4.1 shall be subject to the Merger or any of the other Contemplated TransactionsConfidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (La Jolla Pharmaceutical Co), Merger Agreement (Tetraphase Pharmaceuticals Inc)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives ensure that each of the Acquired Corporations toother Inphi Entities and its and their respective Representatives: (ai) provide Parent Marvell and Parent's Marvell’s Representatives with reasonable access during normal business hours to the Acquired Corporations' RepresentativesInphi Entities’ personnel, personnel properties and assets and to all existing books, records, Tax Returns, auditor work papers (subject to entering into a customary non-reliance agreement reasonably acceptable to such auditor) and other documents and information relating to the Acquired CorporationsInphi Entities; and (bii) provide Parent Marvell and Parent's Marvell’s Representatives with such copies of the existing books, records, Tax Returns, auditor work papers and other documents and information relating to the Acquired Corporations Inphi Entities, and with such additional financial, operating and other data and information regarding the Inphi Entities, in each case, as Parent Marvell may reasonably request. During request for purposes reasonably related to the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary facilitation or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality consummation of any of the Contemplated Transactions, in each case, upon reasonable advance notice during normal business hours and in such a manner so as not to unreasonably interfere with the normal business operations of the Inphi Entities. Notwithstanding the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets nothing in this Section 4.1(a) shall require any Inphi Entity or its Representatives to disclose any information to Marvell or Marvell’s Representatives if such disclosure would violate any applicable law or any confidentiality agreement with a third party to which any Inphi Entity is a party as of the Acquired Corporations and date of this Agreement, or jeopardize the related unaudited monthly consolidated statements of operationsattorney-client privilege, and, if prepared, statements of cash flowswork product doctrine or other legal privilege held by any Inphi Entity; and (B) subject if any Inphi Entity does not provide or cause its Representatives to applicable Antitrust Lawsprovide such access or such information in reliance on clause “(A)” of this sentence, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of then the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent Company shall promptly (and in any event within two Business Days after such Inphi Entity determines that it will not provide or cause it Representatives to provide such access or such information) provide a written notice to Marvell stating that it is withholding such access or such information and stating the justification therefor, and shall use commercially reasonable efforts to provide the Company applicable information in a way that would not violate such law or such confidentiality agreement, or jeopardize such privilege.
(b) The Confidentiality Agreement shall remain in full force and effect in accordance with its terms until the Company's Representatives with copies Delaware Merger Effective Time, except that the Marvell Entities’ obligations under Sections 7 and 8 thereof shall terminate upon the execution and delivery of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsthis Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Marvell Technology Group LTD), Agreement and Plan of Merger and Reorganization (INPHI Corp)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause each of the other Acquired Companies to, and shall use its reasonable best efforts to cause its and their respective Representatives of the Acquired Corporations to: (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel personnel, properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (bii) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers (including auditor work papers, subject to entering into a customary non-reliance agreement reasonably acceptable to such auditor) and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit including promptly providing Parent's senior officers to meet, upon reasonable notice and during normal business hoursrequest, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of all material operating and financial reports prepared by the Acquired Corporations and Companies for the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flowsCompany’s senior management; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Companies in connection with any of the Contemplated Transactions; and (C) any material notice, report or other document received by any of the Acquired Companies from any Governmental Body, in each case, upon reasonable advance notice during normal business hours and in such a manner so as not to unreasonably interfere with the Acquired Companies’ normal business operations. The Company shall promptly notify Parent of the receipt by any Acquired Company of any written notice or other written communication from any Person alleging that the Consent of such Person is or may be required in connection with the Merger or any of the other Contemplated Transactions. Notwithstanding the foregoing: (1) nothing in this Section 4.1(a) shall require any Acquired Company or its Representatives to disclose any information to Parent or Parent’s Representatives to the extent such (x) disclosure would violate any applicable Legal Requirement or jeopardize the attorney-client privilege, work-product doctrine or other legal privilege held by any Acquired Company or (y) information is prohibited from being disclosed pursuant to the terms of confidentiality provisions in a Company Contract with a third party entered into prior to the date of this Agreement; and (ii2) subject to applicable Antitrust Lawsif any Acquired Company or any Representative of any Acquired Company does not provide such access or such information in reliance on clause “(1)” of this sentence, Parent then the Company shall promptly (and in any event within two Business Days after such Acquired Company determines that it will not provide or cause or permit it Representatives to provide such access or such information) provide a written notice to Parent stating that it is withholding such access or such information and stating the justification therefor, and shall use its reasonable best efforts to provide the applicable information in a way that would not violate such Legal Requirement, jeopardize such privilege or breach such confidentiality provisions (it being understood that, at Parent’s written request, the Company or the Company's Representatives with copies shall use its reasonable best efforts to obtain any required consent of any material notice, report or other document filed with or sent such third party under such applicable Company Contract to any Governmental Body on behalf of permit such disclosure to Parent or Merger Sub in connection with Parent’s Representatives). Any access to the Merger or properties of any of the other Contemplated TransactionsAcquired Companies pursuant to this Section 4.1(a) will be subject to compliance with reasonable security measures and reasonable health and safety measures established by the Company in the ordinary course of business and will not include the right to perform any “invasive” testing or soil, air or groundwater sampling, including any Phase I or Phase II environmental assessments. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth in this Section 4.1(a) by electronic means if physical access is not reasonably feasible or would not be permitted under applicable COVID-19 Measures.
(b) The Confidentiality Agreement shall remain in full force and effect in accordance with its terms until the Effective Time, except that Sections 12 and 15 of the Confidentiality Agreement shall have no force or effect during the Pre-Closing Period.
Appears in 2 contracts
Sources: Merger Agreement (Momentive Global Inc.), Merger Agreement (Momentive Global Inc.)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of Date until the earlier of the Effective Offer Acceptance Time or and the termination of this Agreement pursuant to Section 9.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company and its directors, employees and officers shall, and the Company shall cause the respective direct its other Representatives of the Acquired Corporations to: Company, (a) to provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' RepresentativesCompany’s officers, personnel employees, other personnel, and assets and to all existing booksbooks and records (provided, recordshowever, Tax Returnsthat any such access shall be conducted at Parent’s sole expense, work papers at a reasonable time, under the supervision of appropriate personnel of the Company or its Subsidiaries and other documents in such a manner as not to unreasonably interfere with the normal operation of the business of the Company and information relating to the Acquired Corporations; its Subsidiaries) and (b) provide to furnish to Parent such financial and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers operating data and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During , but in the Pre-Closing Periodcase of clauses (a) and (b), solely to the extent that such access or furnishing of data or other information is related to planning for integration or operation of the Company shalland its Subsidiaries following the Closing or the satisfaction of any condition to Closing. The foregoing notwithstanding, nothing herein shall require the Company or any of its Subsidiaries to permit any inspection or testing, or to disclose any information, that the Company in the good faith determination of the Company (after consultation with its counsel): (i) would reasonably be expected to (x) jeopardize any attorney-client privilege (so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto) or (y) contravene any applicable Law (including Antitrust Law), fiduciary duty or binding Contract (including any confidentiality agreement to which the Company, its Subsidiaries or its Affiliates is a party); or (ii) is reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Information disclosed pursuant to this Section 6.1 shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company determines doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 6.1, Parent shall comply with, and shall cause the instruct Parent’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇Non-▇▇▇▇▇ Act Disclosure Agreement, dated as of August 9, 2021, by and between the rules Company and regulations relating theretoParent (the “Non-Disclosure Agreement”). Without limiting the generality of any All requests for information made pursuant to this Section 6.1 shall be directed to an executive officer of the foregoing, during the Pre-Closing Period: (i) Company or other person designated by the Company shall promptly provide Parent with copies of: (A) upon in writing. Nothing in this Section 6.1 will be construed to require the request of ParentCompany, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger its Subsidiaries or any of the other Contemplated Transactions; and (ii) subject its Representatives to applicable Antitrust Lawsprepare any reports, Parent shall promptly provide the Company or the Company's Representatives with copies of any material noticeanalyses, report appraisals, opinions or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsinformation.
Appears in 2 contracts
Sources: Merger Agreement (Supernus Pharmaceuticals, Inc.), Merger Agreement (Adamas Pharmaceuticals Inc)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement or the Effective Time (the "Pre-Closing Period"), subject to applicable Legal Requirements and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shalland Parent shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (a) provide Parent and Parent's the Representatives of the other party with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany, as the case may be; and (b) provide Parent and Parent's the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Acquired Corporations Company, as Parent the case may reasonably requestbe. During the Pre-Closing Period, the Company and Parent shall, and shall cause the their respective Representatives of each of the Acquired Corporations to, permit Parent's cause their senior officers to meet, upon reasonable notice and during normal business hours, with the their respective chief financial officer officers and other officers of the Company responsible for the Company's and Parent's financial statements and the internal controls of the Acquired Corporations controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under comply following the Closing with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without Subject to Section 5.7 and without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company and Parent shall promptly provide Parent the other with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Alamo Corporations or the Abeline Corporations, respectively, in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject Transactions a reasonable time in advance of the filing or sending of such document in order to applicable Antitrust Laws, Parent permit a review thereof. Nothing herein shall promptly provide require the Company or the Company's Representatives with copies Parent to disclose any information if such disclosure would jeopardize any attorney-client privilege or contravene any applicable Legal Requirement or binding agreement entered into prior to the date of any material notice, report this Agreement; provided that the parties shall cooperate to disclose such information to the extent possible without jeopardizing such privilege or other document filed with contravening such Legal Requirements or sent binding agreements. All information exchanged pursuant to any Governmental Body on behalf of Parent or Merger Sub in connection with this Section 4.1 shall be subject to the Merger or any of the other Contemplated TransactionsConfidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Allos Therapeutics Inc), Merger Agreement (Amag Pharmaceuticals Inc.)
Access and Investigation. During (a) Subject to any applicable Legal Requirement, Acquiror and its Representatives shall, at all times during normal business hours and with reasonable advance notice, have such reasonable access to the period commencing facilities, operations, records and properties of the Company and each of its Subsidiaries in accordance with the provisions of this Section 5.1(a) as shall be necessary for the purpose of determining the Company’s continued compliance with the terms and conditions of this Agreement and preparing for the integration of Acquiror and the Company and the integration of Acquiror Bank and the Bank following the Effective Time. Acquiror and its Representatives may, during such period, make or cause to be made such reasonable investigation of the operations, records and properties of the Company and each of its Subsidiaries and of their respective financial and legal conditions for such purposes; provided, however, that such access or investigation shall not interfere materially with the normal operations of the Company or any of its Subsidiaries. Upon request, the Company and each of its Subsidiaries will furnish Acquiror or its Representatives attorneys’ responses to auditors’ requests for information regarding the Company or such Subsidiary, as the case may be, and such financial and operating data and other information reasonably requested by Acquiror (provided, such disclosure would not result in the waiver by the Company or any of its Subsidiaries of any claim of attorney-client privilege). No investigation by Acquiror or any of its Representatives shall affect the representations and warranties made by the Company in this Agreement. This Section 5.1(a) shall not require the disclosure of any information to Acquiror the disclosure of which, in the Company’s reasonable judgment: (i) would be prohibited by any applicable Legal Requirement; (ii) would result in the breach of any agreement with any third party in effect on the date of this Agreement Agreement; or (iii) relate to pending or threatened litigation or investigations, if disclosure might affect the confidential nature of, or any privilege relating to, the matters being discussed. If any of the restrictions in the preceding sentence shall apply, the Company and ending as Acquiror will make appropriate alternative disclosure arrangements, including adopting additional specific procedures to protect the confidentiality of sensitive material and to ensure compliance with any applicable Legal Requirement.
(b) From the date hereof until the earlier of the Effective Time Closing Date or the termination of this Agreement (the "Pre-Closing Period")in accordance with its terms, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours promptly furnish to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing PeriodAcquiror: (i) the Company shall promptly provide Parent with copies of: (A) upon the request a copy of Parenteach report, unaudited monthly consolidated balance sheets of the Acquired Corporations schedule, registration statement and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with filed, furnished or sent received by it during such period pursuant to any Governmental Body on behalf the requirements of any of the Acquired Corporations in connection with the Merger federal and state banking laws or any of the other Contemplated Transactionsfederal or state securities laws; and (ii) subject a copy of each report filed by it or any of its Subsidiaries with any Regulatory Authority; in each case other than portions of such documents relating to confidential supervisory or examination materials or the disclosure of which would violate any applicable Antitrust LawsLegal Requirement.
(c) The Company shall provide, Parent shall promptly provide and cause each of its Subsidiaries to provide, to Acquiror all information provided to the directors on all such boards or members of such committees in connection with all meetings of the board of directors and committees of the board of directors of the Company or otherwise provided to the directors or members, and to provide any other financial reports or other analysis prepared for senior management of the Company or its Subsidiaries; in each case other than portions of such documents: (i) relating to confidential supervisory or examination materials, (ii) the disclosure of which would violate any applicable Legal Requirement, (iii) the disclosure of which would, in the reasonable judgment of the Company's Representatives with copies of any material notice’s outside counsel, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub result in connection with the Merger or any waiver of the other Contemplated Transactionsattorney-client privilege, or (iv) related to an Acquisition Proposal (disclosure of which shall be governed solely by Section 5.8).
(d) All information obtained by Acquiror in accordance with this Section 5.1 shall be treated in confidence as provided in (i) that certain letter agreement dated as of July 17, 2023, between Acquiror and the Company and (ii) that certain letter agreement dated as of October 30, 2023, between Acquiror and the Company (collectively, and as each may be amended from time to time, the “Confidentiality Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (First Busey Corp /Nv/), Merger Agreement (First Busey Corp /Nv/)
Access and Investigation. During the period commencing on the date Promptly following execution of this Agreement and ending as Agreement, Seller shall provide Purchaser with a list of Seller’s personnel initially to be contacted with respect to the transactions contemplated by this Agreement, together with all relevant contact information. At such time, Seller shall also provide Purchaser with a list of operator contacts for all of the earlier Assets that are not operated by Seller or an Affiliate, together with all relevant contact information. Between the Execution Date and the Closing Date, subject to the provisions of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Section 3.01, the Company shallSeller will, and shall will cause the respective Representatives of the Acquired Corporations its representatives to: , (a) provide Parent afford Purchaser and Parent's Representatives with its representatives (collectively, “Purchaser’s Advisors”) reasonable access during normal business hours to the Acquired Corporations' Representativesaccess, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with to the chief financial officer Seller’s designated personnel, properties, contracts, books and records, and other officers of documents and data, (b) provide Purchaser and Purchaser’s Advisors with access to all such contracts, books and records, and other existing documents and data as Purchaser may reasonably request, and (c) provide Purchaser and Purchaser’s Advisors with access to such additional financial, operating, and other data and information as Purchaser may reasonably request to the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary extent within Seller’s possession or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretocontrol. Without limiting the generality of any of Notwithstanding the foregoing, during the Pre-Closing Period: Seller shall not be required to provide to Purchaser or its representatives (i) any information the Company shall promptly provide Parent with copies of: disclosure of which is prohibited by applicable law, rule or regulation, or (Aii) upon any information the request disclosure of Parentwhich requires the consent or approval of a Third Party if such consent or approval has not yet been obtained; provided that (i) Seller will notify Purchaser that it is in possession of responsive information, unaudited monthly consolidated balance sheets of but that the Acquired Corporations and the related unaudited monthly consolidated statements of operationsrequisite consent or approval has not yet been obtained, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject if requested by Purchaser, Seller shall use commercially reasonable efforts to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies obtain a waiver of any material notice, report or other document filed with or sent to any Governmental Body on behalf such restrictions in favor of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsPurchaser.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Carbon Natural Gas Co), Purchase and Sale Agreement (Carbon Energy Corp)
Access and Investigation. During (a) Subject to any applicable Legal Requirement and any reasonable response to the period commencing COVID-19 virus (SARS-COV-2) (or any mutation or variation thereof or related health condition, or any related or associated epidemics, pandemics or disease outbreaks), Acquiror and its Representatives shall, at all times during normal business hours and with reasonable advance notice, have such reasonable access to the facilities, operations, records and properties of the Company and each of its Subsidiaries in accordance with the provisions of this Section 5.1(a) as shall be reasonably necessary for the purpose of determining the Company’s continued compliance with the terms and conditions of this Agreement and preparing for the integration of Acquiror and the Company following the Effective Time. Acquiror and its Representatives may, during such period, make or cause to be made such reasonable investigation of the operations, records and properties of the Company and each of its Subsidiaries and of their respective financial and legal conditions as Acquiror shall deem reasonably necessary or advisable to familiarize itself with such records, properties and other matters; provided, however, that such access or investigation shall not interfere with the normal operations of the Company or any of its Subsidiaries. Upon request, the Company and each of its Subsidiaries will furnish Acquiror or its Representatives attorneys’ responses to auditors’ requests for information regarding the Company or such Subsidiary, as the case may be, and such financial and operating data and other information reasonably requested by Acquiror (provided, such disclosure would not result in the waiver by the Company or any of its Subsidiaries of any claim of attorney-client privilege). No investigation by Acquiror or any of its Representatives shall affect the representations and warranties made by the Company in this Agreement. This Section 5.1(a) shall not require the disclosure of any information to Acquiror the disclosure of which, in the Company’s reasonable judgment: (i) would be prohibited by any applicable Legal Requirement; (ii) would result in the breach of any agreement with any third party in effect on the date of this Agreement Agreement; (iii) relate to pending or threatened litigation or investigations; or (iv) if disclosure might otherwise affect the confidential nature of, or any privilege relating to, the matters being discussed. If any of the restrictions in the preceding sentence shall apply, the Company and ending as Acquiror will make appropriate alternative disclosure arrangements, including adopting additional specific procedures to protect the confidentiality of sensitive material and to ensure compliance with any applicable Legal Requirement.
(b) From the date hereof until the earlier of the Effective Time Closing Date or the termination of this Agreement (the "Pre-Closing Period")in accordance with its terms, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours promptly furnish to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing PeriodAcquiror: (i) the Company shall promptly provide Parent with copies of: (A) upon the request a copy of Parenteach report, unaudited monthly consolidated balance sheets of the Acquired Corporations schedule, registration statement and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with filed, furnished or sent received by it during such period pursuant to any Governmental Body on behalf the requirements of any of the Acquired Corporations in connection with the Merger federal and state banking laws or any of the other Contemplated Transactionsfederal or state securities laws; and (ii) subject a copy of each report filed by it or any of its Subsidiaries with any Regulatory Authority; in each case other than portions of such documents relating to confidential supervisory or examination materials or the disclosure of which would violate any applicable Antitrust LawsLegal Requirement.
(c) The Company shall provide, Parent shall promptly provide and cause each of its Subsidiaries to provide, to Acquiror all information provided to the directors on all such boards or members of such committees in connection with all meetings of the board of directors and committees of the board of directors of the Company or otherwise provided to the directors or members, and to provide any other financial reports or other analysis prepared for senior management of the Company or its Subsidiaries; in each case other than portions of such documents: (i) relating to confidential supervisory or examination materials, (ii) the disclosure of which would violate any applicable Legal Requirement, (iii) the disclosure of which would, in the reasonable judgment of the Company's Representatives with copies of any material notice’s outside counsel, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub result in connection with the Merger or any waiver of the other Contemplated Transactionsattorney-client privilege, or (iv) related to an Acquisition Proposal (disclosure of which shall be governed solely by Section 5.8).
(d) All information obtained by Acquiror in accordance with this Section 5.1 shall be treated in confidence as provided in that certain confidentiality agreement, dated July 27, 2021, between Acquiror and the Company (the “Confidentiality Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Guaranty Federal Bancshares Inc), Merger Agreement (QCR Holdings Inc)
Access and Investigation. During Prior to the period commencing on Closing, upon reasonable notice from the date of Purchaser to the Sellers given in accordance with this Agreement and ending as Agreement, the Sellers will afford to the officers, attorneys, accountants or other authorized representatives of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with Purchaser reasonable access during normal business hours to the Acquired Corporations' Representativesfacilities, personnel assets, books and assets and to all existing books, records, Tax Returnsand management personnel of the Companies, work papers and other documents and information Autronics US (to the extent relating to the Acquired Corporations; and US Business), P&G plc (b) provide Parent and Parent's Representatives with such copies of to the existing books, records, Tax Returns, work papers and other documents and information extent relating to the Acquired Corporations UK Business) Spirent plc (with respect to the UK Lease Sites), and Spirent GmbH (to the extent relating to the German Business), so as Parent to afford the Purchaser a reasonable opportunity to make, at its sole cost and expense, such additional review, examination and investigation of the Companies, the Assets, the US Business, the UK Business, and the German Business as the Purchaser may reasonably requestdesire to make; PROVIDED, HOWEVER, that the Purchaser shall not be permitted such access to the extent that the Sellers or the Companies are prohibited from granting such access pursuant to any Law, Order or rule of any regulatory body applicable to any Seller or any Company wherever located. During Sellers shall instruct their accountants and advisers to reasonably cooperate with the Pre-Purchaser and to provide Purchaser with reasonable access to such accountants (including their work papers to the extent available to the Sellers) and advisers, all at Purchaser's cost and expense. Whether or not the Closing Periodoccurs, the Company shallPurchaser will, and shall will cause the Representatives of each of the Acquired Corporations its Affiliates and authorized representatives to, permit Parent's senior officers to meettreat in confidence and not disclose any and all documents, upon reasonable notice materials and during normal business hours, with the chief financial officer and -42- other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary information disclosed by or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with Sellers, the Merger Companies or any of their respective Affiliates, whether before, during or after the course of the negotiations leading to the execution of this Agreement or thereafter, in accordance with that certain Confidentiality Agreement between the Sellers and the Purchaser dated October 3, 2001 (the "CONFIDENTIALITY AGREEMENT"), provided that if the Closing occurs, the Confidentiality Agreement shall no longer be applicable to any such documents, materials or other Contemplated Transactions; and (ii) subject information which relate to applicable Antitrust Laws, Parent shall promptly provide the Company Companies or the Company's Representatives with copies of any material noticeBusinesses, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionswhich constitute Assets.
Appears in 1 contract
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, GHX shall (and shall cause the respective Representatives of the Acquired Corporations its Subsidiaries to: ): (a) provide Parent the Stockholder and Parentthe Stockholder's Representatives with reasonable access during normal business hours hours, upon reasonable notice to the Acquired CorporationsGHX, to GHX's and its Subsidiaries' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsGHX or its Subsidiaries; and (b) provide Parent or make available to the Stockholder and Parentthe Stockholder's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to GHX or its Subsidiaries as the Acquired Corporations as Parent Stockholder may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations Period and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, GHX and the Stockholder shall promptly provide the other party with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of GHX or the Acquired Corporations Stockholder, as applicable, in connection with the Merger or any of the other Contemplated Transactions; and . The foregoing shall not require GHX to permit any inspection, or to disclose any information, that in the reasonable judgment of GHX could reasonably be expected to result in (i) the disclosure of any trade secrets of third parties or the violation of any obligations of GHX with respect to confidentiality if GHX shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure, (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies waiver of any material notice, report applicable attorney-client privilege so long as GHX has taken reasonable steps to permit inspection of or other document filed to disclose information described in this clause (ii) on a basis that does not compromise GHX's privilege with respect thereto or sent to (iii) the violation of any Governmental Body on behalf of Parent applicable Legal Requirement. The parties shall seek in good faith appropriate substitute disclosure arrangements under circumstances in which the immediately preceding sentence applies. No investigation by the Stockholder shall limit or Merger Sub in connection with the Merger or otherwise affect any of the other Contemplated Transactionsrepresentations, warranties, covenants or obligations of GHX contained in this Agreement.
Appears in 1 contract
Sources: Exchange Agreement (Vha Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of through the earlier of the Effective Time or the valid termination of this Agreement in accordance with Section 9 (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of each of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets of the Acquired Corporations and to all existing books, records, Tax Returns, work papers papers, Acquired Corporation Contracts and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's ’s Representatives with such copies of the such existing books, records, Tax Returns, work papers papers, Acquired Corporation Contracts and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During Without limiting the generality of the previous sentence, (i) the Company shall deliver to Parent the financial statements and other information the Company delivers or is required to deliver to Insight or any of its affiliates pursuant to paragraphs “(a)” through “(e)” of Section 8.1 of the Securities Purchase Agreement, dated as of June 28, 2002, among Insight, the Company and certain other parties, in accordance with the terms thereof (without giving effect to any waiver by Insight or any of its affiliates of any of such provisions), and (ii) during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, meet with the chief financial officer controller and other officers of the Company Acquired Corporations responsible for the Company's ’s financial statements and statements, the internal controls of the Acquired Corporations and the disclosure controls and procedures of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable for Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations relating thereto. Without limiting Notwithstanding anything in this Section 5.1 to the generality of any of the foregoingcontrary, during the Pre-Closing Period: (i) the Company activities referred to in this Section 5.1 shall promptly provide Parent be conducted in such a manner so as not to interfere unreasonably with copies of: (A) upon the request operation of Parent, unaudited monthly consolidated balance sheets the businesses of the Acquired Corporations and the related unaudited monthly consolidated statements of operationsCorporations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or may limit the access described in this Section 5.1 to the extent such access would reasonably be expected to, in the opinion of the Company's Representatives with copies ’s outside counsel, materially violate any applicable Legal Requirement or result in a material violation of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsAcquired Corporation Contract that constitutes a Material Contract.
Appears in 1 contract
Access and Investigation. During Subject to the terms of the Confidentiality Agreement which the Parties agree will continue in full force following the date of this Agreement, during the period commencing on the date of this Agreement and ending as of the earlier of at the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), upon reasonable notice, the Company shall, and shall use commercially reasonable efforts to cause the respective Company’s applicable Representatives of the Acquired Corporations to: (a) provide Parent Buyer and Parent's Buyer’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Company’s Representatives, personnel personnel, assets, offices and assets other facilities of the Company and its Subsidiaries and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany and its Subsidiaries, provided, that such access will include reasonable direct access to the executive team and other senior executives of the Company at the level of managing director (or equivalent) and higher; and (b) provide Parent Buyer and Parent's Buyer’s Representatives with such copies of the existing books, records, Tax Returns, work papers papers, product, technology and service data, and other documents and information relating to the Acquired Corporations Company and its Subsidiaries, their assets, Liabilities, Business, properties, offices and other facilities, and with such additional financial, operating and other data and information regarding the Company and its Subsidiaries as Parent Buyer may reasonably request. During the Pre-Closing Period; provided, the Company shall, and that such investigation shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, only be upon reasonable notice and during normal business hoursshall be at Buyer’s sole cost and expense; provided, with further, that nothing herein shall require the chief financial officer Company or any of its Representatives to disclose any information to Buyer or its Representatives if such disclosure would, in the reasonable and other officers good faith judgment of the Company responsible or its Representatives, as applicable, (i) violate applicable Legal Requirements or the provisions of any Contract (including any confidentiality agreement or similar agreement or arrangement) to which the Company or any of its Subsidiaries or Representatives is a party, or fiduciary duty or (ii) jeopardize any attorney-client or other legal privilege; provided, further, that, for the Company's financial statements and the internal controls avoidance of the Acquired Corporations doubt, nothing herein shall create (or shall be construed to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of create) any obligation on any of the foregoingCompany’s professional advisors to disclose any information, during or otherwise take or refrain from taking any action, absent an express contractual requirement to do so under such professional advisors’ respective engagement agreements with the Pre-Closing Period: (i) Company. If the Company does not provide or cause its applicable Representatives to provide such access or such information in reliance on the previous sentences in this Section 5.1, then the Company shall promptly (and in any event within twenty four (24) hours after the Company determines that it will not provide Parent with copies of: (Aor cause it Representatives to provide such access or such information) upon provide a written notice to Buyer stating that it is withholding such access or such information and stating the request of Parentjustification therefor, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject shall use commercially reasonable efforts to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the applicable information in a way that would not violate such Legal Requirement, Contract or confidentiality agreement, or jeopardize such privilege. No investigation or access permitted pursuant to this Section 5.1 shall be deemed to modify any representation or warranty made by the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionshereunder.
Appears in 1 contract
Sources: Investment Agreement (Sunlight Financial Holdings Inc.)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of each of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets of the Acquired Corporations and to all existing books, records, Tax Returns, work papers papers, Acquired Corporation Contracts and other documents and information relating to the Acquired Corporations; provided, however, that in exercising Parent’s access rights under this Section 4.1, Parent and Parent’s Representatives shall not be permitted to interfere unreasonably with the conduct of the business of the Acquired Corporations; and (b) provide Parent and Parent's ’s Representatives with such copies of the such existing books, records, Tax Returns, work papers papers, Acquired Corporation Contracts and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During Without limiting the generality of the previous sentence, (i) promptly following the preparation thereof, the Company shall deliver to Parent (A) a consolidated balance sheet of the Company and its consolidated Subsidiaries as of the last day of each calendar month during the Pre-Closing Period, and (B) a consolidated statement of operations of the Company and its consolidated Subsidiaries for such calendar month and for the period from January 1, 2004 through the end of such calendar month, (ii) on or before March 30, 2004, the Company shall deliver to Parent an audited consolidated balance sheet of the Company and its consolidated Subsidiaries as of December 31, 2003 and the related audited consolidated statement of operations, statement of shareholders’ equity and statement of cash flows of the Company and its consolidated Subsidiaries for the year then ended, together with the notes thereto and the unqualified report and opinion of KPMG LLP relating thereto (the “Audited 2003 Financial Statements”), and (iii) during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, meet with the chief financial officer controller and other officers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable for Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 1 contract
Sources: Merger Agreement (Verity Inc \De\)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of continuing until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8 or the Effective Time (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective its Representatives and each of the Acquired Corporations Companies and their respective Representatives to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; Companies and (b) provide Parent and Parent's ’s Representatives with such copies of the existing such books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and other information regarding the Acquired Companies, as Parent may reasonably request, in each case to the extent the provision of such information would not violate any applicable Legal Requirement. During the Pre-Closing Period, Parent and its Representatives may make inquiries of Persons having business relationships with the Acquired Companies (including suppliers, licensors and customers), and the Company shallshall ensure that each Acquired Company and its Representatives facilitate (and cooperate fully with Parent in connection with) such inquiries. In exercising any of its rights hereunder, and Parent shall cause conduct itself so as not to materially intentionally interfere in the Representatives of each conduct of the Acquired Corporations to, permit Parent's senior officers Companies or their respective businesses prior to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers Closing. Notwithstanding any of the Company responsible for foregoing to the Company's financial statements contrary, during the period commencing on the date of this Agreement and continuing through the internal controls Pre-Closing Period, none of the Acquired Corporations Companies shall be required to discuss provide access to or to disclose information where such matters as Parent may deem necessary access or appropriate disclosure would contravene any Legal Requirement, rule, regulation, order, judgment, decree or binding agreement entered into prior to the date of this Agreement or would reasonably be expected to violate or result in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality a loss or impairment of any attorney-client or work product privilege. All information and access to information provided to Parent or any of its Representatives pursuant to this Section 4.1(a) shall be subject to the confidentiality provisions of the foregoingConfidentiality Agreement.
(b) The Company shall deliver to Parent, as soon as practicable and in any event within 30 days after the end of each monthly accounting period that ends during the Pre-Closing Period: , unaudited consolidated financial statements of the Acquired Companies (iconsisting of a consolidated balance sheet, a consolidated statement of operations and a consolidated statement of cash flows) as of the end of and for such monthly accounting period, prepared in accordance with GAAP, with the exception of footnotes required by GAAP; provided, however, that with respect to February 2017, the Company shall promptly provide Parent with copies of: (A) upon the request of deliver to Parent, as soon as practicable and in any event no later than March 20, 2017, unaudited monthly consolidated balance sheets financial statements of the Acquired Corporations Companies (consisting of a consolidated balance sheet, a consolidated statement of operations and the related unaudited monthly a consolidated statements of operations, and, if prepared, statements statement of cash flows; and (B) subject to applicable Antitrust Lawsfor the two-month period ended February 28, any notice2017, report or other document filed prepared in accordance with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection GAAP, with the Merger or any exception of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsfootnotes required by GAAP.
Appears in 1 contract
Sources: Merger Agreement (Ca, Inc.)
Access and Investigation. During (a) From the period commencing date hereof and prior to the earlier to occur of the Closing Date, or the date that this Agreement is terminated in accordance with Article IX, except as otherwise provided herein or in any of the Transaction Documents or as required by Applicable Law, Seller shall (and shall cause Medegen and Medegen Parent to) cooperate with Buyer in its investigation of the Business and its properties, to permit Buyer and its authorized representatives, at the sole cost of Buyer, to (i) have reasonable access, subject to a reasonable claim of attorney-client privilege, during normal business hours and with reasonable prior written notice to (x) Medegen’s books and records and (y) to the extent related to the Business, Seller’s books and records, (ii) visit and visually inspect any of the Owned Real Property and the Leased Real Property, in each case during normal business hours and with reasonable prior written notice, and (iii) discuss the Business’s books and records, proprietary financial position and results of operations, or otherwise pertaining to the Business’s operations, affairs, finances and accounts with key employees of Seller, with respect to the Business, or Medegen, identified on Schedule 5.1(a); provided, however, that Buyer shall coordinate all contact with any of the key employees through Seller’s Representative.
(b) Subject to Section 6.5, all information concerning the Business furnished or provided by Seller or its Affiliates to Buyer or its representatives (whether furnished before or after the date of this Agreement Agreement) shall be held subject to the confidentiality agreement between Seller and ending Parent, dated as of February 12, 2013 (the earlier “Confidentiality Agreement”); provided, however, that the obligations of Parent and its Affiliates in Section 1 of the Effective Time or Confidentiality Agreement as it relates to Information (as defined in the termination of this Agreement (Confidentiality Agreement) not related to the "Pre-Closing Period"), Business shall survive until the Company shall, and shall cause the respective Representatives third anniversary of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours Closing Date. Notwithstanding anything to the Acquired Corporations' Representativescontrary contained in this Agreement, personnel and assets and neither Seller nor any of its Affiliates shall have any obligation to all existing books, records, Tax Returns, work papers and other documents and information relating make available or provide to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary Buyer or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality representatives a copy of any of the foregoingTax Return filed by Seller, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Lawsits Affiliates, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of related materials other than Tax Returns and related materials to the other Contemplated Transactionsextent they relate exclusively to Medegen.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of Date until the earlier of the Effective Offer Acceptance Time or the and any termination of this Agreement pursuant to Section 9.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the each of its Subsidiaries and shall cause (or, with respect to Representatives other than employees or officers of an Acquired Company, shall direct) each of its and their respective Representatives of the Acquired Corporations to: , (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' RepresentativesCompany’s officers, personnel employees, other personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; Company and (b) provide Parent and Parent's Representatives with such copies of the such existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company, in each case, to the extent reasonably requested by Parent (provided, however, that any such access shall be conducted at Parent’s sole expense, at a reasonable time, under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company) and (b) furnish to Parent such financial and operating data and other information as Parent may reasonably request, but in the case of clauses (a) and (b), solely to the extent that such access or furnishing of data or other information is permissible under applicable Law. During the Pre-Closing PeriodThe foregoing notwithstanding, nothing herein shall require the Company shallto disclose any information to Parent if (i) any applicable Law or regulation requires the Company to restrict or otherwise prohibit access to such documents or information; (ii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; or (iii) access would result in the disclosure of any trade secrets of third Persons; provided, however, that the Company will notify Parent in reasonable detail of the circumstances giving rise to any non-disclosure pursuant to the foregoing and the Company shall provide such access or disclosure of such information to the maximum extent possible. Information disclosed pursuant to this Section 6.1 shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to outside legal counsel for Parent, to the extent the Company determines doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 6.1, Parent shall comply with, and shall cause the instruct Parent’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the Confidentiality and Non-Disclosure Agreement, dated as of October 27, 2023, as amended as of the date hereof, by and between the Company and QHP Capital, L.P. (the “Non-Disclosure Agreement”). All requests for information made pursuant to this Section 6.1 shall be directed to an executive officer of the Company or other person designated by the Company in writing. Notwithstanding anything herein to the contrary, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules Merger Sub shall not, and regulations relating thereto. Without limiting the generality of shall cause their respective Representatives not to, contact any partner, licensor, licensee, customer or supplier of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Offer, the Merger or any of the other Contemplated Transactions; Transactions without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and (ii) subject Parent and Merger Sub acknowledge and agree that any such contact shall be arranged by and with a Representative of the Company participating. Nothing in this Section 6.1 will be construed to applicable Antitrust Laws, Parent shall promptly provide require the Company or the Company's any of its Representatives with copies of to prepare any material noticereports, report analyses, appraisals, opinions or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionssimilar information.
Appears in 1 contract
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or and the termination of this Agreement pursuant to the terms of Section 8.1 (the "“Pre-Closing Period"”), the Company and Parent each shall, and shall cause the ensure that each of their respective Representatives of the Acquired Corporations toSubsidiaries and its and their respective Representatives: (ai) provide Parent the other Party and Parent's its Representatives with reasonable access during normal business hours to the Acquired Corporations' its and its Subsidiaries’ Representatives, personnel personnel, properties, facilities and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing booksContracts, records, Tax Returnspermits, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Periodinformation, the Company shall, and shall cause the Representatives of in each of the Acquired Corporations to, permit Parent's senior officers to meet, case upon reasonable notice and advance notice, during normal business hours, in accordance with reasonable procedures established by Parent and the Company and in a manner that does not unreasonably interfere with the chief financial officer and other officers normal operation of the Company responsible for the Company's financial statements and the internal controls business of the Acquired Corporations Companies or Parent and its Subsidiaries, as the case may be; provided that, with respect to discuss such matters as Parent may deem necessary or appropriate in order the Company, the access to enable Parent be granted to satisfy its obligations it under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: this clause (i) shall be limited to what is reasonably required by the Company shall promptly provide for purposes of enforcing its rights and claims under this Agreement; (ii) instruct its and its Subsidiaries’ employees, counsel, accountants and other Representatives, in each case, as appropriate or relevant to reasonably cooperate with Parent with copies of: (A) upon or the request of ParentCompany, unaudited monthly consolidated balance sheets of as the Acquired Corporations and the related unaudited monthly consolidated statements of operationscase may be, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in good faith in connection with the Merger or any of the other Contemplated Transactionsforegoing; and (iiiii) subject to applicable Antitrust Laws, Parent shall promptly provide maintain in operation the electronic data room made available by the Company to Parent or by Parent to the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub as the case may be, in connection with the Merger or any Contemplated Transactions and continue to provide the other Party and its Representatives with access through such electronic data room to all information contained therein as of the other Contemplated Transactionsdate of this Agreement to the same extent provided prior to the date hereof.
(b) Notwithstanding anything in clause (a) of this Section 4.1, no Party shall be required to afford access or furnish information to the extent that such information is subject to an attorney-client privilege or the attorney work product doctrine or that affording such access or furnishing such information would, in the opinion of such Party’s outside counsel, violate Applicable Laws or an existing Contract.
(c) All information furnished by either Party under clause (a) of this Section 4.1 shall be subject to the terms and provisions of the Confidentiality Agreement. US-LEGAL-11446530/6 174293-0017 3089529.v7
Appears in 1 contract
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement in accordance with Article 8 (the "“Pre-Closing Period"”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable notice the Company shalland Parent shall each, and shall cause the each of their respective Representatives of the Acquired Corporations Subsidiaries to: (a) provide Parent and Parent's the Representatives of the other party with reasonable access during normal business hours to the Acquired Corporations' Representativesits personnel, personnel tax and accounting advisers and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany and in such manner as shall not unreasonably interfere with the business or operations of the party providing such access, as the case may be; and (b) provide Parent and Parent's the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Acquired Corporations Company, as Parent the case may reasonably requestbe. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations Company Entities to, permit Parent's ’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's ’s financial statements and the internal controls of the Acquired Corporations Company Entities to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its post-Closing obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. During the Pre-Closing Period, Parent shall, and shall cause the Representatives of each of Parent to, permit the Company’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of Parent responsible for the Parent’s financial statements and the internal controls of the Parent Entities to discuss such matters as the Company may deem necessary or appropriate in order to enable post-closing management of Parent and the Surviving Corporation to satisfy its post-Closing obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust LawsLegal Requirements, the Company and Parent shall each promptly provide the other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Company Entities or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), upon reasonable notice, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide to Parent and Parent's its authorized Representatives with reasonable access during normal business hours to the Acquired Corporations' Representativesoffices, personnel and assets and to all existing books, recordsRecords, Tax Returns, work papers Contracts, commitments, facilities and accountants of the Company Group, and shall furnish and make available to Parent and its authorized Representatives all such documents and copies of documents (at Parent’s expense) and all such additional financial and operating data and other documents and information relating pertaining to the Acquired Corporationsaffairs of the Company Group as Parent and its authorized Representatives may reasonably request; provided, however, that (a) the activities of Parent and its Representatives shall be conducted in such a manner as not to interfere unreasonably with the operation of the businesses of the Company Group and (b) provide in no event shall the Company be required to furnish Parent and Parent's or its Representatives with such copies of the existing books, records, Tax Returns, work papers and other any documents and or information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: that (i) the Company shall promptly provide Parent with copies of: (A) upon the request of ParentGroup is required by Legal Requirement, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject Governmental Order or Contract to applicable Antitrust Laws, any notice, report keep confidential or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject that would reasonably be expected to applicable Antitrust Lawsjeopardize the status of such document or information as privileged, work product or as a trade secret. Notwithstanding the foregoing, prior to the Closing Date, without the prior written consent of the Company, which shall not be unreasonably withheld or delayed, neither Parent nor its Representatives shall promptly provide contact any suppliers to or customers (except as provided below), employees or directors of, the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub ’s Subsidiaries in connection with or pertaining to any subject matter of this Agreement. Parent may retain a third party firm that is in the Merger or any business of conducting anonymous reference checks with customers (which third party firm shall be reasonably acceptable to the Company), and that third party firm may do so with customers of the other Contemplated TransactionsCompany without giving prior notice to the Company (provided, that such third party firm shall enter into a customary confidentiality agreement with the Company in connection with, and prior to conducting, such checks).
Appears in 1 contract
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "PrePRE-Closing PeriodCLOSING PERIOD"), the Company Companies shall, and shall cause the respective their Representatives of the Acquired Corporations to: (a) , provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired CorporationsCompanies' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to each Company; provided, however, that no Company will be required to permit any inspection or to disclose any information that, in the Acquired Corporationsreasonable judgment of that Company, would (i) result in the disclosure of any trade secrets of third parties, (ii) violate any obligation of the Company with respect to confidentiality, or (iii) jeopardize protections afforded the Company under the attorney-client privilege or the attorney work product doctrine. In addition, (i) Parent shall not contact, and Parent shall ensure that none of its Representatives contact, any employee of any Company without the prior authorization of that Company's Chairman of the Board, Chief Executive Officer or Chief Financial Officer; and (ii) Parent shall ensure that none of its employees, accountants, counsel, financial advisors or other representatives interfere with or otherwise disrupt the business or operations of the Company while exercising the rights provided under this Section 5.1.
(b) During the Pre-Closing Period, Parent shall, and shall cause its Representatives to, provide Parent each Company and Parenteach Company's Representatives with such copies of the reasonable access to Parent's Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to Parent and its subsidiaries; provided, however, that Parent shall not be required to permit any inspection, or to disclose any information, that in the Acquired Corporations as reasonable judgment of Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: would (i) result in the disclosure of any trade secrets of third parties, (ii) violate any obligation of Parent with respect to confidentiality, or (iii) jeopardize protections afforded Parent under the attorney-client privilege or the attorney work product doctrine. In addition, (i) no Company shall promptly provide Parent with copies of: (A) upon the request contact, and each Company shall ensure that none of Parentits officers, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operationsemployees, andaccountants, if preparedcounsel, statements of cash flows; and (B) subject to applicable Antitrust Lawsfinancial advisors or other representatives contact, any notice, report or other document filed with or sent to any Governmental Body on behalf employee of any of the Acquired Corporations in connection with the Merger Parent or any of its subsidiaries without the other Contemplated Transactions; prior authorization of Parent's Chief Executive Officer, Chief Operating Officer or Chief Financial Officer, and (ii) subject to applicable Antitrust Lawseach Company shall ensure that none of its employees, Parent shall promptly provide the Company or the Company's Representatives with copies of any material noticeaccountants, report counsel, financial advisors or other document filed representatives interfere with or sent to any Governmental Body on behalf otherwise disrupt the business or operations of Parent or Merger Sub in connection with while exercising the Merger or any of the other Contemplated Transactionsrights provided under this Section 5.1.
Appears in 1 contract
Access and Investigation. During the period commencing on the date of (a) Without in any way limiting anything else contained in this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Agreement, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Stockholders will afford Parent and Parent's Representatives with its accountants, counsel and other representatives reasonable access during normal business hours at a time and place designated by the Company during the period prior to the Acquired Corporations' RepresentativesClosing Date to (i) the properties, personnel and assets and to all existing books, recordscontracts, Tax Returnsloan documents, work papers commitments, and other documents records of the Company and information relating to the Acquired Corporations; each Company Subsidiary, and (bii) provide Parent all other information concerning the Company’s and Parent's Representatives with such copies of the existing booksCompany Subsidiaries businesses, recordsassets, Tax Returnscustomers, work papers suppliers, and other documents and information relating to the Acquired Corporations personnel as Parent may reasonably request. During Without limiting the Pre-Closing Periodforegoing, Parent will have reasonable access to the Company’s and each Company Subsidiary’s software and customer data.
(b) Other than (i) information in Parent’s possession prior to the date access was granted, (ii) information obtained by or from a source other than the Company or any Company Subsidiary, which source, to the Knowledge of Parent, was not in breach of any confidentiality agreement or (iii) information that is publicly available, all information delivered to, made available to, or obtained by Parent from the Company, the Company shallSubsidiaries, and shall cause or the Representatives Stockholders prior to the Closing or pursuant to this Agreement, including under this section, will be considered confidential information, which Parent will not disclose or use for any purpose other than (w) disclosure of each information as required in the course of regulatory examination procedures that are subject to confidentiality under United States laws or the Acquired Corporations tolaws of other jurisdictions that similarly protect the confidentiality of materials disclosed in the regulatory examination process, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with (x) the chief financial officer and other officers performance of a due diligence review of the Company responsible for the Company's financial statements and the internal controls Company Subsidiaries, (y) for purposes of obtaining Regulatory Approvals or (z) to confirm the accuracy of the Acquired Corporations to discuss such matters as Parent may deem necessary representations, warranties, or appropriate in order to enable Parent to satisfy its obligations under covenants of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Company and the rules Stockholders hereunder, until such time as the transactions contemplated hereby are closed or, in the event this Agreement is terminated and regulations relating thereto. Without limiting no Closing occurs, for a two (2) year period from the generality date of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsthis Agreement.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as through the date on which designees of Parent constitute both (i) a majority of the earlier members of the Effective Time or Board of Directors of the termination Company and (ii) all of this Agreement the executive officers of the Company (the "PrePRE-Closing PeriodCLOSING PERIOD"), upon reasonable notice, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During Unless otherwise required by any Legal Requirement, during the Pre-Closing Period, Parent will disclose any such information which is non-public only in accordance with the provisions of the Confidentiality Agreement between the Company shalland Parent, dated June 7, 2002, and shall cause will otherwise treat any such information during the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, Pre-Closing Period only in accordance with the chief financial officer and other officers provisions of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoConfidentiality Agreement. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: :
(Aa) upon all material operating and financial reports prepared by the request Acquired Corporations for the Company's senior management, including (i) copies of Parent, the unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of stockholders' equity and statements of cash flows; flows and (Bii) subject copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company's senior management;
(b) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits stockholders;
(c) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices);
(d) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and and
(iie) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to all of the Acquired Corporations' Representatives’ personnel, personnel properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCorporations (including financial schedules and accounting records); and (b) promptly provide Parent and Parent's ’s Representatives with such all requested information in the possession of any of the Acquired Corporations regarding the business of the Acquired Corporations, including copies of the existing books, records, Tax Returns, Company Contracts, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, the Company shall, and shall cause the Representatives supervision of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers appropriate personnel of the Company responsible for and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company's financial statements . Nothing herein shall require the Company to disclose any information to Parent if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege, (ii) contravene any applicable Legal Requirement, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party) or (iii) result in the disclosure of any trade secrets of third parties. Without limiting the foregoing, in the event that the Company does not disclose information in reliance on the preceding sentence, it shall provide notice to Parent that it is withholding such information and shall use its reasonable best efforts to communicate, to the internal controls extent feasible, the applicable information in a way that would not violate the applicable Legal Requirements, Contract or obligation or risk waiver of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoprivilege. Without limiting the generality of any of the foregoingthis Section 4.1, during the Pre-Closing Period: (i) Period the Company shall will furnish to the Parent promptly provide Parent with copies of: after becoming available (A) upon to the request of Parentextent such items become available), monthly financial statements, including an unaudited monthly consolidated balance sheets of the Acquired Corporations sheet, income statement and the related unaudited monthly consolidated statements of operations, and, if prepared, statements statement of cash flows; and (B) subject flows for each month through the Closing Date as it may prepare for management’s internal use. With respect to applicable Antitrust Laws, any notice, report or other document filed with or sent the information disclosed pursuant to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Lawsthis Section 4.1, Parent shall promptly provide comply with, and shall cause Parent’s Representatives to comply with, all of its obligations under the Confidentiality Agreement by and between Parent and Company or dated June 4, 2013 (as amended from time to time, the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions“Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), subject to (i) applicable Antitrust Laws relating to the exchange of information, (ii) applicable Laws protecting the privacy of employees and personnel files, (iii) applicable undertakings given by the Company to others prior to the date hereof requiring confidential treatment of documents, and (iv) appropriate limitations on the disclosure of other information to maintain attorney-client privilege, the Company shall, and shall cause the respective Acquired Corporation’s Representatives of the Acquired Corporations to: , (a1) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents documents, and with such additional financial, operating and other data and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to regarding the Acquired Corporations as Parent may reasonably request. During , (2) cause its officers to confer regularly with Parent concerning the Pre-Closing Period, the Company shall, and shall cause the Representatives of each status of the Acquired Corporations toCompany’s business, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters in each case as Parent may deem necessary or appropriate in order reasonably request and (3) provide Parent and Parent’s Representative with reasonable access to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Company’s significant clients and the rules and regulations relating theretovendors. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with with, or afford Parent the right to make, copies of: of (A) upon all material operating and financial reports prepared by the request Company and its Subsidiaries for the Company’s senior management, including copies of Parent, the unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flowsfinancial statements; and (B) subject any written materials or communications sent by or on behalf of the Company to applicable Antitrust Laws, its stockholders; (C) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and (iiD) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report notice of alleged violations or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or legal non-compliance received by any of the Acquired Corporations from any Governmental Body.
(b) Company and Parent agree that all information so received from the other Contemplated Transactionsshall be deemed received pursuant to the Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement ('Mktg, Inc.')
Access and Investigation. During the period commencing on (a) From the date hereof until the earlier to occur of the Closing or such earlier time as this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")is terminated in accordance with Section 10, the Company Seller Parties shall and the Group Companies shall, and shall cause their Subsidiaries to, give Buyer and any Debt Financing Sources (including their respective financial and legal representatives) reasonable access (during regular business hours and in a manner so as not to materially interfere with the respective Representatives normal operation of the Acquired Corporations Group Companies’ business) to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to , or copies of, such of the Acquired Corporations' Representativesproperties, personnel and assets and to all existing books, records, Tax Returnscontracts, work papers and other documents and information relating insurance policies of the Group Companies as may reasonably be requested in connection with obtaining the Debt Financing; provided, that, prior to any such disclosure to any Debt Financing Source, such Debt Financing Source shall be bound by the Confidentiality Agreement or confidentiality obligations to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies Buyer at least as stringent as the obligations of the existing books, records, Tax Returns, work papers and other documents and information relating to Buyer under the Acquired Corporations as Parent may reasonably requestConfidentiality Agreement. During the Pre-Closing Period, the Company shall, and Any access or investigation in accordance with this Section 6.3(a) shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, only be upon reasonable notice and during normal business hours, with the chief financial officer shall not disrupt personnel and other officers operations of the Company responsible for the Company's financial statements and the internal controls business of the Acquired Corporations Group Companies and shall be in accordance with applicable antitrust Laws.
(b) Notwithstanding anything in this Section 6.3 to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of contrary, neither Seller Party nor any of the foregoing, during the Pre-Closing Period: (i) the Company its Affiliates shall promptly provide Parent with copies of: be required to disclose to Buyer or any of its Representatives any information (A) upon to the request of Parentextent related to the sale or divestiture process conducted by such Seller Party or its Affiliates for the Group Companies vis-à-vis any Person other than Buyer and its Affiliates, unaudited monthly consolidated balance sheets or such Seller Party’s or its Affiliates’ (or their respective Representatives’) evaluation of the Acquired Corporations business of the Group Companies in connection therewith, including projections, financial and the related unaudited monthly consolidated statements of operationsother information relating thereto, and, if prepared, statements of cash flows; and (B) subject if doing so would violate any Contract or Law to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger which such Seller Party or any of its Affiliates (including any Group Company) is a party or is subject or which it reasonably determined upon the other Contemplated Transactions; advice of counsel could result in the loss of the ability to successfully assert attorney-client and work product privileges, (iiC) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger if such Seller Party or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other Contemplated Transactionshand, are adverse parties in a litigation and such information is reasonably pertinent thereto, (D) if such Seller Party reasonably determines upon the advice of counsel that such information should not be so disclosed due to its competitively sensitive nature, or (E) relating to Seller Group Tax Returns or the Taxes reported therein.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 8 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company and each of its Subsidiaries shall, and shall cause the respective Representatives of the Acquired Corporations Company and each of its Subsidiaries to: (a) , provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Company’s Representatives, personnel employees, facilities and assets and to all existing books, records (including Tax records), Tax Returns, documents (including work papers and other documents papers) and information relating to the Acquired Corporations; Company and (b) each of its Subsidiaries, and promptly provide Parent and Parent's ’s Representatives with such copies all reasonably requested information regarding the business of the existing booksCompany and each of its Subsidiaries and such additional financial, records, Tax Returns, work papers operating and other documents data and information relating to regarding the Acquired Corporations Company and each of its Subsidiaries, as Parent may reasonably request. During , in each case for any reasonable business purpose related to the Pre-Closing Period, the Company shall, and shall cause the Representatives of each consummation of the Acquired Corporations toTransactions; provided, permit however, that any such access shall be conducted at Parent's senior officers to meet’s expense, upon reasonable notice and during normal business hours, with under the chief financial officer and other officers supervision of appropriate personnel of the Company responsible for and its Subsidiaries, as applicable, and in such a manner as not to unreasonably interfere with the Company's financial statements and the internal controls normal operation of the Acquired Corporations business of the Company and its Subsidiaries; provided, further, that none of Parent nor Parent’s Representatives shall conduct any environmental site assessment, compliance evaluation or investigation with respect to discuss any Real Property without the prior written consent of the Company (with email being sufficient) (which consent will not be unreasonably withheld, conditioned or delayed) and without reasonable consultation with the Company with respect to any such matters as Parent may deem necessary activity. Nothing herein shall require the Company or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoingits Subsidiaries to disclose any information to Parent if such disclosure would, during the Pre-Closing Period: in its reasonable discretion and after notice to Parent, (i) jeopardize any attorney-client or other legal privilege (so long as the Company shall promptly provide and its Subsidiaries, as applicable, have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with copies of: (A) upon the request of Parentrespect thereto), unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to contravene any applicable Antitrust Laws, Parent shall promptly provide Legal Requirement (so long as the Company or and each of its Subsidiaries have reasonably cooperated with Parent to permit disclosure to the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.extent permitted by Legal Requirements) or
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: all material operating and financial reports prepared by the Company and its Subsidiaries for the Company's senior management, including (A) upon copies of the request of Parent, unaudited monthly quarterly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly quarterly consolidated statements of operations, and, if prepared, statements of stockholders' equity and statements of cash flows; flows and (B) subject copies of any sales forecasts, development plans and hiring reports prepared for the Company's senior management; any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits stockholders; any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between any Acquired Corporation and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices); any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
Appears in 1 contract
Sources: Merger Agreement (Exelixis Inc)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of continuing until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 10 and the Closing (the "“Pre-Closing Period"”), the Company shall, and shall cause the direct that their respective Representatives and each of the Acquired Corporations to: (a) Companies and their respective Representatives, reasonably promptly upon request, to provide Parent Purchaser and Parent's Purchaser’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and personnel, assets and to properties (including the Leased Real Property) and provide copies of all existing available books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies with such additional financial, operating and other data and other information regarding the Acquired Companies, in each case, as Purchaser may reasonably request; provided, that such access would not be in breach of any applicable COVID-19 Measures and does not unreasonably interfere with the normal business operations of the Company. Notwithstanding the foregoing, the Company shall not be required to permit any inspection, or to disclose any information, that in the reasonable, good-faith judgment of the Company (w) would result in the disclosure of any trade secrets of any Person or violate any confidentiality obligation of the Company, (x) would jeopardize protections afforded to the Company under the attorney-client privilege or the attorney work product doctrine (or similar protections or privileges), (y) relates to any information that is reasonably pertinent to any litigation in which the Company and Purchaser are adverse parties, or (z) would reasonably, on the advice of counsel (including in-house counsel), violate applicable Legal Requirements.
(b) provide Parent The Company shall deliver to Purchaser, as soon as reasonably practicable and Parent's Representatives with such copies in any event on the first Business Day following the expiration of the existing books, records, Tax Returns, work papers and other documents and information relating to 30 day period after the Acquired Corporations as Parent may reasonably request. During end of each monthly accounting period that ends during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each unaudited financial statements of the Acquired Corporations toCompanies as of the end of and for such monthly accounting period, permit Parent's senior officers to meetprepared in accordance with French GAAP consistently applied throughout the periods covered, upon reasonable notice and during normal business hours, in each case prepared in accordance with the chief Company’s historic past practice (all such financial officer and other officers of statements, the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the “Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsFinancial Statements”).
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the its Subsidiaries and its and their respective Representatives of the Acquired Corporations to: (a) , provide Parent and Parent's ’s Representatives with reasonable access during normal business hours (including electronic access) to each of the Acquired Corporations' RepresentativesCompany’s properties, personnel personnel, offices, books and assets and to all existing books, records, Tax ReturnsContracts, commitments, work papers and other documents and information relating to the Acquired Corporations; Company and (b) provide Parent and Parent's Representatives with such copies of the existing books, such books and records, Tax ReturnsContracts, commitments, work papers and other documents and information relating to the Acquired Corporations Company (other than any of the foregoing to the extent specifically related to the negotiation and execution of this Agreement or any sale process preceding the execution and delivery of this Agreement, or, except as expressly provided in Section 4.1, Section 4.3 or Section 5.1, to any Acquisition Proposal), in each case as Parent may reasonably request. During requests solely for the Pre-Closing Period, purposes of furthering or preparing for the Company shall, and shall cause the Representatives of each consummation of the Acquired Corporations toMerger or the other Transactions; provided, permit however, that any such access shall be conducted at Parent's senior officers to meet’s sole cost and expense, upon at a reasonable notice and time during the Company’s normal business hours, with under the chief financial officer and other officers supervision of appropriate personnel of the Company responsible for and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company's financial statements , and shall be subject to the internal controls Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to permit any inspection or physical testing of real property that in the reasonable judgment of the Company would be detrimental to the Acquired Corporations Companies’ business or operations if the Transactions are not consummated nor shall anything herein require the Company to discuss disclose any information to Parent if such matters as Parent may deem necessary disclosure would, upon the advice of outside legal counsel, (a) jeopardize any attorney-client or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoingother legal privilege (provided, during the Pre-Closing Period: (i) that the Company shall promptly provide Parent with copies of: use its reasonable best efforts to allow the disclosure of such document or information (Aor as much of it as possible) upon in a manner that does not result in a loss of attorney-client or other legal privilege), (b) contravene any applicable Legal Requirement (provided, that the request Company shall use its reasonable best efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not contravene applicable Legal Requirement; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, unaudited monthly consolidated balance sheets to the extent the Company determines, on the advice of outside legal counsel, that doing so may be reasonably required for the Acquired Corporations and the related unaudited monthly consolidated statements purpose of operations, and, if prepared, statements of cash flows; and (B) subject to complying with applicable Antitrust Laws), any notice, report or other document filed with or sent to any Governmental Body on behalf (c) result in the disclosure of any valuations of the Acquired Corporations Company prepared in connection with the Merger Transactions or any other strategic alternative, or (d) be for the purpose of disclosing such document or information in any Legal Proceeding between the Parties. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, as though it was the “Receiving Party” thereto, and shall instruct Parent’s Representatives to comply with, all of its obligations under that certain Confidentiality Agreement entered into between the Company and Brightstar Capital Partners in respect of the Transactions, which Confidentiality Agreement is set forth on Section 4.1 of the Company Disclosure Letter (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 4.1 shall be directed to the executive officer or other Person designated by the Company. Despite anything in this Section 4.1 to the contrary, nothing in this Section 4.1 shall be construed to require any Acquired Company or any of its respective Representatives to prepare any financial statements, projections, reports, analyses, appraisals or opinions that are not readily available. Notwithstanding the foregoing or anything to the contrary in the Confidentiality Agreement, Parent will be permitted to disclose all non-public and confidential information provided by or on behalf of the Company to Parent or any of its Affiliates or Representatives to any financing sources or prospective financing sources (including lenders and limited partners) and other Contemplated Transactionsfinancial institutions and investors that may become parties to the Financing (and, in each case, to their respective Representatives) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; and or (ii) are subject to applicable Antitrust Laws, Parent shall promptly provide other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary. Notwithstanding anything to the contrary contained herein, the Company shall (a) use reasonable best efforts to conduct its response to any audits, investigations or the Company's Representatives Legal Proceedings with respect to international trade, duties and customs matters actively and diligently, (b) keep Parent reasonably informed of all substantive developments and events relating to such matters (including by promptly forwarding copies to Parent of any material notice, report correspondence or other document filed with or materials sent to or received from any Governmental Body with respect thereto), (c) provide Parent (or Parent’s designated counsel or advisors) with an opportunity to review and comment on any substantive written filings or materials (including any correspondence) prepared by or on behalf of the Company in connection with such matters, reasonably in advance of the submission of such filings or material, and (d) reasonably consult with Parent or Merger Sub in connection with the Merger prosecution and defense of such matters; provided, however, that the Company shall not be required to disclose any information to Parent pursuant to this sentence if such disclosure would, upon the advice of outside legal counsel, jeopardize any attorney-client or any other legal privilege (provided, that the Company shall use its reasonable best efforts to allow the disclosure of the such document or information (or as much of it as possible) in a manner that does not result in a loss of attorney-client or other Contemplated Transactionslegal privilege).
Appears in 1 contract
Sources: Merger Agreement (PlayAGS, Inc.)
Access and Investigation. During the period commencing on Between the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Date, the Company shallSellers will, and shall will cause the respective each Acquired Company and its Representatives of the Acquired Corporations to: , (a) provide Parent afford the Buyer and Parentits Representatives and prospective lenders and their Representatives (collectively, the "Buyer's Representatives with Advisors") full and free access (upon reasonable access during normal business hours notice) to the each Acquired Corporations' RepresentativesCompany's personnel, personnel properties (including subsurface testing), contracts, books and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and data, (b) provide Parent furnish the Buyer and Parentthe Buyer's Representatives Advisors with copies of all such contracts, books and records, and other existing documents and data as the Buyer may reasonably request, and (c) furnish the Buyer and the Buyer's Advisors with such copies of the existing booksadditional financial, recordsoperating, Tax Returns, work papers and other documents data and information relating to as the Acquired Corporations as Parent Buyer may reasonably request. During From the Pre-date hereof, at the request of the Buyer, and provided that such action would not have an adverse effect on the Acquired Companies if Closing Perioddoes not occur, the Company shall, and Sellers shall cause the Representatives Acquired Companies to take such actions as the Buyer may reasonably request in respect of each of the Acquired Corporations totax elections, permit Parent's senior officers to meetaccounting methodologies, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements governmental filings and the internal controls adoption of other practices, policies or procedures, in which event the Acquired Corporations to discuss implementation of any such matters as Parent may deem necessary practices, policies or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act procedures and the rules and regulations relating thereto. Without limiting the generality taking of any of the foregoing, during the Pre-Closing Period: such actions (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf not constitute a breach of any of the Acquired Corporations in connection with the Merger representation, warranty or any of the other Contemplated Transactions; covenant hereof and (ii) subject shall be deemed to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection have been made with the Merger or any consent of the other Contemplated TransactionsBuyer. The Sellers agree to cause the Acquired Companies not to file the federal income tax returns of the Acquired Companies for the fiscal year ending September 30, 1996 on or before the Closing Date unless the Closing Date has not occurred prior to the due date, as presently extended, for filing such return.
Appears in 1 contract
Access and Investigation. During (a) Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement Date and ending as of on the earlier of (a) the Effective Time or and (b) the termination of this Agreement pursuant to Section 7.1 (such period being referred to herein as the "Pre-Closing “Interim Period"”), the Company shall, and shall cause the Company Subsidiaries and their respective Representatives of to, upon reasonable advance notice to the Acquired Corporations toCompany from Parent: (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Company’s and the Company Subsidiaries’ respective Representatives, personnel books, records, Tax Returns, material operating and assets financial reports, work papers, assets, executive officers, Contracts and other documents and information relating to all existing the Company and the Company Subsidiaries; and (ii) provide Parent and Parent’s Representatives with such copies of the books, records, Tax Returns, work papers papers, Contracts and other documents and information relating to the Acquired Corporations; Company and (b) provide Parent the Company Subsidiaries, and Parent's Representatives with such copies of the existing booksadditional financial, records, Tax Returns, work papers operating and other documents data and information relating to regarding the Acquired Corporations Company and the Company Subsidiaries, as Parent may reasonably request. During Information obtained by Merger Subsidiary or Parent pursuant to this Section 5.1 will constitute “Evaluation Material” under the PreConfidentiality Agreement and will be subject to the provisions of the Confidentiality Agreement. Nothing in this Section 5.1 will require the Company to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company (after consulting with outside legal advisors) would: (1) violate any legal requirement with respect to confidentiality or privacy, including under any privacy policy, or (2) jeopardize protections afforded the Company under the attorney-Closing client privilege or the attorney work product doctrine; provided that the Company shall use its commercially reasonable efforts to allow for such access and disclosure in a manner that does not violate such legal requirement with respect to confidentiality or privacy, attorney-client privilege or the attorney work product doctrine.
(b) Except to the extent prohibited by Law, during the Interim Period, the Company shall, shall (and shall cause the Representatives of each of the Acquired Corporations Company Subsidiaries to and shall cause each of its and their respective Representatives to), permit within a reasonable time following the request thereof by Parent's senior officers , use commercially reasonable efforts to meetarrange meetings and telephone conferences between the customers, upon reasonable notice licensors, partners, vendors and during normal business hours, with the chief financial officer and other officers suppliers of the Company responsible for the Company's financial statements and the internal controls Company Subsidiaries on the one hand, and Parent and Merger Subsidiary, their Affiliates, and each of their respective Representatives, on the Acquired Corporations other hand. Except as set forth in the preceding sentence, prior to discuss such matters as the Closing, neither Parent may deem necessary nor Merger Subsidiary shall (and each shall cause its Affiliates and Representatives not to), except in the Parent’s or appropriate in order to enable Parent to satisfy any of its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality Affiliate’s ordinary course of business, contact or communicate with any of the foregoingcustomers, during the Pre-Closing Period: (i) licensors, partners, landlords, vendors or suppliers of the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust LawsCompany Subsidiaries, Parent shall promptly provide without the Company or prior written consent of the Company's Representatives with copies of any material notice, report which consent shall not be unreasonably withheld, conditioned or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsdelayed.
Appears in 1 contract
Sources: Merger Agreement (Bazaarvoice Inc)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement or the Effective Time (the "“Pre-Closing Period"”), the Company shallsubject to applicable Legal Requirements, upon reasonable notice, Fox and Ainge shall each, and shall cause each of their respective Subsidiaries to: (i) provide the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives other party with reasonable access during normal business hours (insofar as such access is reasonably required by the requesting party) to the Acquired Corporations' Representatives, personnel its Representatives and assets and to all existing books, records, Tax Returnswork papers and other documents and information relating to such Entity or any of its Subsidiaries (but in the case of Fox and its Subsidiaries, solely as it relates to the A&S Business or the A&S Companies), in each case as reasonably requested by Ainge or Fox, as the case may be, and (ii) provide the Representatives of the other party with such copies of the existing books, records, work papers and other documents and information relating to such Entity and its Subsidiaries (but in the Acquired Corporations; case of Fox and (b) provide Parent and Parent's Representatives with such copies of the existing booksits Subsidiaries, records, Tax Returns, work papers and other documents and information relating solely as it relates to the Acquired Corporations A&S Business or the A&S Companies) as Parent reasonably requested by Ainge or Fox, as the case may reasonably requestbe. During the Pre-Closing Period, the Company Fox and Ainge shall, and shall use reasonable best efforts to cause the their respective Representatives of each of the Acquired Corporations to, permit Parent's cause their senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other their respective officers of the Company responsible for the Company's Fox’s and Ainge’s financial statements and the internal controls of the Acquired Corporations controls, respectively, to discuss such matters as Parent Fox or Ainge may deem necessary or appropriate in order to enable Parent Ainge to satisfy its obligations under comply following the Closing with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without Subject to Section 5.3 and without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , Fox and Ainge shall provide the Company shall promptly provide Parent other with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations A&S Companies or the Ainge Companies, respectively, in connection with the Merger or any of the other Contemplated TransactionsTransactions a reasonable time in advance of the filing or sending of such document in order to permit a review thereof. Nothing herein shall require Fox or Ainge to disclose any information if such disclosure would jeopardize any attorney-client privilege or contravene any applicable Legal Requirement or binding agreement entered into prior to the date of this Agreement; and (ii) provided that the parties shall cooperate to disclose such information to the extent possible without jeopardizing such privilege or contravening such Legal Requirements or binding agreements. All information exchanged pursuant to this Section 4.1 shall be subject to applicable Antitrust Laws, Parent the Confidentiality Agreement. This Section 4.1 shall promptly provide the Company or the Company's Representatives not apply with copies of any material notice, report or other document filed with or sent respect to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsTax matters.
Appears in 1 contract
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of hereof through the earlier of the Effective Time or the termination of this Agreement Closing Date (the "“Pre-Closing Period"”), the Company shall, and Platinum shall cause the respective Representatives of the Acquired Corporations to: Seller, each Company and each Subsidiary to (ai) provide Parent Black Box and Parent's Representatives its representatives with reasonable access during normal business hours to the Acquired Corporations' Representativesrepresentatives, personnel and personnel, assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to any Company, any Subsidiary, the Acquired Corporations; and Voice/Network Services Business, the Interests or the Assets, (bii) provide Parent Black Box and Parent's Representatives its representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to any Company, any Subsidiary, the Acquired Corporations Voice/Network Services Business, the Interests or the Assets, and with such additional financial, operating and other data and information regarding any Company or Subsidiary and their financial condition, as Parent Black Box may reasonably request. request and (iii) cooperate with Black Box in its reasonable investigation of any Company, any Subsidiary, the Voice/Network Services Business, the Interests or the Assets.
(b) During the Pre-Closing Period, Platinum shall give prompt written notice to Black Box if it becomes aware of (i) any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, (ii) the Company shallfailure by it to comply with or satisfy in any material respect any covenant, and shall cause condition or agreement to be complied with or satisfied by it under this Agreement, (iii) the Representatives occurrence of each of an event or circumstance that could be reasonably expected to make the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality timely satisfaction of any of the foregoingconditions set forth in Article 7 impossible or unlikely or that has had or would reasonably be expected to have a Material Adverse Effect and (iv) the commencement of any litigation or proceeding against Seller, during any Company, any Subsidiary, the Voice/Network Services Business or the Assets.
(c) During the Pre-Closing Period: , Black Box shall give prompt written notice to Platinum if it becomes aware of (i) any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, (ii) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject failure by it to applicable Antitrust Laws, any notice, report or other document filed comply with or sent satisfy in any material respect any covenant, condition or agreement to any Governmental Body on behalf be complied with or satisfied by it under this Agreement, (iii) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the Acquired Corporations conditions set forth in connection with Article 8 impossible or unlikely or that (A) would materially impair the Merger ability of Black Box to perform or any observe its obligations under this Agreement or (B) affects the legality, binding affect, validity or enforceability of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsthis Agreement.
Appears in 1 contract
Access and Investigation. During the period commencing on (a) Between the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Date, and upon reasonable advance notice received from Purchaser, the Company shallshall (i) afford Purchaser and its agents and representatives (collectively, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with “Purchaser Group”), reasonable access access, during normal regular business hours and upon reasonable prior notice, to the Acquired Corporations' RepresentativesCompany’s and its Subsidiaries’ properties, personnel facilities, contracts, books and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating data, such rights of access to be exercised in a manner that does not unreasonably interfere with the operations of the Company and its Subsidiaries, including, without limitation, access in order to prepare a current survey of the Mineral W▇▇▇▇ Premises by a surveyor licensed in the State of Texas, and (ii) furnish to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such Purchaser Group copies of the existing booksall such contracts, books and records, Tax Returnsand other existing document and data that the Purchaser Group may reasonably request. Between the date of this Agreement and the Closing Date, work papers and upon reasonable advance notice received from the Company, Purchaser shall (a) afford the Company and its agents and representatives (collectively, the “Company Group”), reasonable access, during regular business hours and upon reasonable prior notice, to Purchaser’s and its Subsidiaries’ (including Facet USA and Facet International) properties, facilities, contracts, books and records, and other documents and information relating data, such rights of access to be exercised in a manner that does not unreasonably interfere with the operations of the Purchaser and its Subsidiaries, and (ii) furnish to the Acquired Corporations as Parent Company Group copies of all such contracts, books and records, and other existing document and data that the Company Group may reasonably request. During .
(b) Between the Pre-date of this Agreement and the Closing PeriodDate, Purchaser will be provided access to Company’s and its Subsidiaries’ employees, suppliers and other Persons having business relations with the Company and its Subsidiaries, at such times and in the manner mutually agreed to by the Company and Purchaser; provided, however, that any meetings between Purchaser and any suppliers or other Persons having business relations with the Company or its Subsidiaries may, in the sole discretion of the Company, include a representative of the Company.
(c) Between the date of this Agreement and the Closing, the Company shall, parties will meet with any actual and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers potential customers of the Company responsible for and its Subsidiaries designated by Purchaser at such times as mutually agreed to by the Company's financial statements , Purchaser and such customers. At all such meetings, except as otherwise agreed to by the internal controls parties, a representative of the Acquired Corporations Purchaser (who is anticipated to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the be N▇▇▇▇▇ ▇▇▇▇▇▇▇) and a representative of the Company (who is anticipated to be L▇-▇▇▇ ▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing▇) will be present; provided, during the Pre-Closing Period: (i) however, that, Purchaser may engage a third party consultant who is reasonably acceptable to the Company shall promptly provide Parent with copies of: to participate in any such meetings (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject in lieu or in addition to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company participation by Purchaser’s representative or the Company's Representatives ’s representative as set forth above). At such meetings, the parties may make all reasonable inquiries of such customers, and otherwise discuss matters with copies such customers as reasonably determined by Purchaser, including, without limitation, inquiring as to the current state of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection such customer’s relationship with the Merger Company and its Subsidiaries and/or such customer’s views regarding the Company and its Subsidiaries or any the products thereof, discussing the contemplated acquisition of the Company by the Purchaser, providing information regarding Purchaser and its business, and discussing the parties’ plans for the business of the Company and its Subsidiaries following the Closing Date.
(d) Purchaser and the Company agrees that all information received from the other Contemplated Transactionsshall be deemed received pursuant to the Confidentiality Agreement, dated March 26, 2006, between the Company and Purchaser (the “Confidentiality Agreement”) and that each shall, and shall cause its Affiliates and each of its and their representatives to, comply with the provisions of the Confidentiality Agreement with respect to such information, and the provisions of the Confidentiality Agreement are hereby incorporated herein by reference with the same effect as if fully set forth in this Agreement; provided, however, that, effective as of the Closing, all confidential information of the Company and its Subsidiaries will be deemed to be “Confidential Information” (as defined in the Confidentiality Agreement) of Purchaser for purposes of the Confidentiality Agreement and will be subject to the protections set forth therein for the benefit of Purchaser.
Appears in 1 contract
Sources: Merger Agreement (Clarcor Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 6.1 (the "Pre-Closing “Pre‑Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each the Company to: (a) provide Parent and Parent’s Representatives with reasonable access to the Company’s properties, offices, books and records, Contracts, commitments and personnel and other information with respect to the business, properties and personnel of the Acquired Corporations toCompany and its Subsidiaries (other than any of the foregoing to the extent specifically related to the negotiation and execution of this Agreement or any sale process preceding the execution and delivery of this Agreement, permit or, except as expressly provided in Section 4.1 or Section 4.4, to any Acquisition Proposal), in each case as Parent reasonably requests; provided, however, that any such access shall be conducted at Parent's senior officers to meet’s sole cost and expense, upon at a reasonable notice and time during the Company’s normal business hours, with upon reasonable advance notice to the chief financial officer and other officers Company, under the supervision of appropriate personnel of the Company responsible for and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company's financial statements , and shall be subject to the internal controls Company’s reasonable security measures and insurance requirements and shall not include invasive testing; provided, further, that the Company shall use commercially reasonable efforts to provide Parent and Parent’s Representatives with access to such information in a manner that does not contravene applicable Legal Requirements or fiduciary duties of the Acquired Corporations Company. Nothing herein shall require the Company to discuss permit any testing or disclose any information to Parent if such matters as Parent may deem necessary or appropriate disclosure would, in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: reasonable discretion (i) jeopardize any attorney‑client or other legal privilege (provided, that the Company shall promptly provide Parent with copies of: use its commercially reasonable efforts to allow the disclosure of such document or information (Aor as much of it as possible) upon in a manner that does not result in a loss of attorney-client or other legal privilege), (ii) contravene any applicable Legal Requirement or fiduciary duty (provided, that the request Company shall use its commercially reasonable efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not contravene any applicable Legal Requirement or fiduciary duty); provided, further, that information may be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to outside counsel for Parent, unaudited monthly consolidated balance sheets to the extent the Company determines doing so may be reasonably required for the purpose of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to complying with applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf (iii) result in the disclosure of any valuations of the Acquired Corporations Company prepared in connection with the Merger Transactions or any other strategic alternative or (iv) result in the disclosure or use of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company such document or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub information in connection with any Legal Proceedings between the Merger or Parties (provided that the foregoing shall not limit applicable rules of discovery). The terms and conditions of (a) the Confidentiality Agreement, dated as of April 26, 2024 by and between the Company and GHO Capital Partners LLC (“GHO”) and (b) the Confidentiality Agreement, dated as of April 24, 2024 by and between the Company and Ampersand Management LLC d/b/a Ampersand Capital Partners (“Ampersand”) ((a) and (b) collectively, the “Confidentiality Agreements”) shall apply to any information disclosed pursuant to this Section 4.1. All requests for information made pursuant to this Section 4.1 shall be directed such Persons listed on Section 4.1 of the other Contemplated TransactionsCompany Disclosure Schedule or designated by the Company. Subject to applicable Legal Requirement, information received pursuant to this Section 4.1 and Section 4.14 may be shared by Parent, its Affiliates and their respective Representatives with any actual or prospective Debt Financing Source in connection with any Debt Financing so long as such Debt Financing Source agrees to be bound by confidentiality provisions substantially similar to those set forth in the Confidentiality Agreements.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of continuing until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8 or the Effective Time (the "“Pre-Closing Period"”), the Company Company, upon advanced written notice received by Parent, shall, and shall cause the respective Representatives ensure that each of the Acquired Corporations toCompanies and its and their respective Representatives: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the each Acquired CorporationsCompany; and (b) provide Parent and Parent's ’s Representatives with such copies of the such existing books, records, Tax Returns, work papers and other documents and information relating to the each Acquired Corporations Company necessary for purposes of post-Closing integration, and with such additional financial, operating and other data and information regarding each Acquired Company, as Parent may reasonably request; provided that any such access (i) shall be conducted at Parent’s expense, under the supervision of appropriate personnel designated by the Company, (ii) in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated hereby and (iii) shall not unreasonably interfere with the normal operation of the business of the Acquired Companies nor create a material risk of damage or destruction to any material assets or property of the Company. During the Pre-Closing Period, Parent may make inquiries to the Company of Persons having business relationships with each Acquired Company (including suppliers, licensors and customers) and the Company shall, and shall ensure that each of the Acquired Companies, help facilitate (and shall cooperate fully with Parent in connection with) such inquiries. Without limiting the generality of the foregoing, during the Pre-Closing Period, the Company shall, and shall cause the Representatives of ensure that each of the Acquired Corporations toCompanies, permit reasonably cooperate with Parent to facilitate Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls ’s due diligence review of the Acquired Corporations Companies’ third-party suppliers and distributors. Nothing herein shall require the Company to discuss disclose any information to Parent if such matters as Parent may deem necessary or appropriate disclosure would, in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and Company’s reasonable discretion, based on the rules and regulations relating thereto. Without limiting the generality advice of any of the foregoingoutside legal counsel, during the Pre-Closing Period: risk (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, jeopardizing any notice, report attorney-client or other document filed with legal privilege or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject contravene any binding agreement entered into prior to applicable Antitrust Laws, Parent shall promptly provide the date of this Agreement (including any confidentiality agreement to which any Acquired Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsis a party).
Appears in 1 contract
Access and Investigation. During the period commencing on (a) From the date of this Agreement and ending as of hereof until the earlier of the Effective Time or (i) the termination of this Agreement and (ii) the "Pre-Closing Period")Closing, and upon reasonable advance notice from the Purchaser and in such manner as will not unreasonably interfere with the conduct of the Business, the Company shallSeller will, and shall will cause each Acquired Company to, allow the respective Representatives of the Acquired Corporations to: Purchaser and its directors, officers, employees, agents, prospective financing sources, consultants and other advisors and representatives (a“Representatives”) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representativesto, personnel and assets and to furnish them with all existing booksdocuments, records, Tax Returns, work papers and other documents information with respect to, the properties, assets, personnel, books, Contracts, Governmental Authorizations, reports and records relating to any Acquired Company as the Purchaser may reasonably request, subject to applicable Laws. In addition, from the date hereof until the earlier of (i) the termination of this Agreement and (ii) the Closing, the Seller will cause the Acquired Companies’ accountants to cooperate with the Purchaser and its representatives in making available the financial information of the Acquired Companies as reasonably requested.
(b) From the Closing Date until the sixth (6th) anniversary of the Closing Date, Purchaser shall (i) retain the books and records of the Acquired Companies relating to the periods prior to the Closing in a manner reasonably consistent with the prior practices of the Acquired Corporations; Companies and (bii) provide Parent upon reasonable advance notice from the Seller and Parent's Representatives in such manner as will not unreasonably interfere with such copies the conduct of the existing booksBusiness, the Purchaser will, and will cause each Acquired Company to, allow the Seller and its Representatives reasonable access during normal business hours to, and furnish them with all documents, records, Tax Returns, work papers and other documents information with respect to, the properties, assets, personnel, books, Contracts, Governmental Authorizations, reports and information records relating to any Acquired Company as the Seller may reasonably request in order to prepare financial statements and/or conduct an audit of the financial statements of Seller and its Affiliates, subject to applicable Laws. In addition, from the Closing Date until the sixth (6th) anniversary of the Closing Date, Purchaser will cause the Acquired Corporations as Parent may Companies’ personnel and accountants to reasonably request. During cooperate with the Pre-Closing Period, Seller and its Representatives in making available the Company shall, and shall cause the Representatives of each financial information of the Acquired Corporations to, permit Parent's senior officers Companies as reasonably requested by the Seller and its Representatives in order for Seller to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers conduct an audit of the Company responsible for the Company's financial statements of Seller and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated TransactionsAffiliates.
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Acceptance Time or and the valid termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall the Company shall, at reasonable times and upon reasonable notice, cause the respective Representatives of the Acquired Corporations Company to: (a) provide Parent and Parent's ’s Representatives with reasonable access access, during normal business hours hours, to the Acquired Corporations' Company’s Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company as Parent may reasonably request. During request (in each case subject to such non-disclosure as may be necessary to avoid waiver of legal privileges, violation of applicable Legal Requirements or breach of any non-disclosure or confidentiality agreement) and subject to the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoCurrent Confidentiality Agreement. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: (Ai) upon the request of Parent, unaudited monthly consolidated any balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if preparedsheets, statements of operations and statements of cash flowsflows prepared by the Company, including for the Company Board; and (Bii) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Company in connection with the Merger Offer, the Share Allocation or any of the other Contemplated Transactions; (iii) any material notice, report or other document received by the Company from any Governmental Body; and (iiiv) subject any non-privileged notice, document or other communication sent by or on behalf of, or sent to, the Company relating to any pending or threatened Legal Proceeding involving or affecting the Company, including the Specified Proceedings. Subject to applicable Antitrust LawsLegal Requirements, during the Pre-Closing Period, Parent shall promptly provide the Company or the Company's Representatives with copies a copy of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Acquisition Sub in connection with the Merger Offer, the Share Allocation or any of the other Contemplated Transactions.
Appears in 1 contract
Sources: Share Allocation and Tender Offer Agreement (Ebay Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 8 (the "“Pre-Closing Period"”), on reasonable advance notice to the Company, the Company shall, and shall cause the Company Subsidiary and the respective Representatives of the Acquired Corporations Company and the Company Subsidiary to: , provide Parent, Purchaser and their respective Representatives with (a) provide Parent and Parent's Representatives with reasonable access during normal business hours of the Company and the Company Subsidiary to the Acquired Corporations' RepresentativesCompany’s and the Company Subsidiary’s assets, personnel and assets designated Representatives (which shall include auditors of Company and the Company Subsidiary) and to all existing books, records, Tax Returns, work papers and other documents and information (including Tax Returns) relating to the Acquired Corporations; Company and the Company Subsidiary in the possession of the Company and the Company Subsidiary, and (b) provide Parent and Parent's Representatives with such copies of the such existing books, records, Tax Returns, work papers and other documents and information relating information, in each case of the foregoing clauses (a) and (b), to the Acquired Corporations as extent reasonably requested by Parent may reasonably request. During for any reasonable business purpose related to the Pre-Closing Period, the Company shall, and shall cause the Representatives of each consummation of the Acquired Corporations toTransactions; provided, permit however, that any such access (i) shall be conducted at Parent's senior officers to meet’s expense, upon at a reasonable notice and during normal business hourstime, with under the chief financial officer and other officers supervision of appropriate personnel of the Company responsible for and the Company Subsidiary and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company and the Company Subsidiary or create a material risk of damage or destruction to any assets or property, and (ii) shall be subject to the Company's financial statements ’s and the internal controls Company Subsidiary’s reasonable security measures and insurance requirements. Nothing herein shall require the Company or the Company Subsidiary to provide Parent or Parent’s Representatives with access to, or to disclose to Parent or Parent’s Representatives or provide Parent or Parent’s Representatives with copies of, any books, records, documents or information if (A) such access, disclosure or provision would, in the Company’s reasonable discretion (I) be detrimental to the Company’s or the Company Subsidiary’s business or operations, (II) jeopardize any attorney-client or other legal privilege (so long as the Company and the Company Subsidiary have reasonably cooperated with Parent to permit such access to or disclosure of such information on a basis that does not waive such privilege with respect thereto), or (III) contravene any Legal Requirement or fiduciary duty or any Contract entered into prior to the date of this Agreement, (B) such books, records, documents or information is reasonably pertinent to Legal Proceedings in which the Company or any of its Affiliates, on the one hand, and Parent, Purchaser or any of their respective Affiliates, on the other hand, are adverse parties, or (C) subject to and without limiting the obligations of the Acquired Corporations Company pursuant to discuss Section 5.3 and Section 6.1, such matters as Parent may deem necessary books, records, documents or appropriate in order information relate to enable Parent to satisfy its obligations under (I) the negotiation or execution of this Agreement, or the actions or discussions of the Board of Directors (or any committee thereof) with respect thereto, or (II) any Acquisition Proposal (whether made or received before or after the execution of this Agreement) or Company Adverse Recommendation Change, or the actions or discussions of the Board of Directors (or any committee thereof) with respect thereto. No investigation by P▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and , Purchaser or their Representatives shall affect the rules and regulations relating theretoCompany’s representations, warranties, covenants, or agreements contained herein, or limit or otherwise affect the remedies available to Parent or Purchaser pursuant to this Agreement. Without limiting With respect to the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject information disclosed pursuant to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Lawsthis Section 5.1, Parent shall promptly provide comply with, and shall cause its Subsidiaries and direct its and their respective Representatives to comply with, all of Parent’s obligations under that certain Non-Disclosure Agreement, dated October 29, 2024, between the Company or and Parent (the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions“Confidentiality Agreement”).
Appears in 1 contract
Sources: Agreement and Plan of Merger (Marinus Pharmaceuticals, Inc.)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations Company to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' Company’s Representatives, personnel personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany; and (b) promptly provide Parent and Parent's ’s Representatives with such all reasonably requested information regarding the business of the Company, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company, and with such additional financial, operating and other data and information regarding the Company, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, supervision of appropriate personnel of the Company shalland in such a manner as not to unreasonably interfere with the normal operation of the business of the Company, and shall cause be subject to the Representatives of each of Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Acquired Corporations toCompany to permit any inspection or testing, permit Parent's senior officers or to meetdisclose any information, upon that in the reasonable notice and during normal business hours, with the chief financial officer and other officers judgement of the Company responsible would be detrimental to the Company’s business or operations nor shall anything herein require the Company to disclose any information to Parent if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege (so long as the Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto) or (ii) contravene any applicable Legal Requirement or fiduciary duty (so long as the Company has used reasonable best efforts to provide such information in a way that does not contravene applicable Legal Requirements or fiduciary duties); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company determines doing so may be reasonably required for the Company's financial statements purpose of complying with applicable Antitrust Laws or Investment Screening Laws. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and the internal controls shall instruct Parent’s Representatives to comply with, all of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoingConfidentiality Agreement dated June 2, during the Pre-Closing Period: (i) 2021, between the Company and Clearlake Capital Group, L.P. (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 4.1 shall promptly provide Parent with copies of: (A) upon be directed to the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report executive officer or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or Person designated by the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 1 contract
Access and Investigation. (a) During the period commencing on from the date of this Agreement and ending as of the earlier of until the Effective Time or Time, upon reasonable advance notice to the termination of this Agreement (the "Pre-Closing Period")Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and personnel, properties, assets and to all existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide furnish promptly to Parent and Parent's ’s and its Subsidiaries’ Representatives with such copies of the existing books, contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations’ business, properties, prospects and personnel, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, supervision of appropriate personnel of the Company shalland in such a manner as to not to interfere with the normal operation of the business of the Company; provided, further that no investigation pursuant to this Section 5.1 shall effect or be deemed to modify any representation or warranty made by the Company in this Agreement. With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall cause the applicable Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy comply with, all of its confidentiality obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Confidentiality Agreement dated August 11, 2011, as amended, between the Company and Parent (the rules and regulations relating thereto. Without limiting “Confidentiality Agreement”).
(b) Nothing herein shall require the generality of Company to disclose any of the foregoinginformation to Parent if such disclosure would, during the Pre-Closing Period: in its reasonable discretion (i) jeopardize any attorney client or other legal privilege (provided, that the Company will nonetheless provide Parent and the applicable Representatives of Parent with appropriate information regarding the factual basis underlying any circumstances that resulted in the preparation of such privileged analyses) or (ii) contravene Antitrust Laws or any other applicable Legal Requirement, fiduciary duty or binding agreement entered into prior to the date of this Agreement, including any confidentiality agreement to which the Company or its Affiliates is a party (provided, that the Company shall promptly provide use its commercially reasonable efforts to obtain the consent of any such agreement’s counterparty to such inspection or disclosure). The Company and Parent with copies of: (A) upon will each use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure under circumstances in which the request of Parent, unaudited monthly consolidated balance sheets restrictions of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionspreceding sentence apply.
Appears in 1 contract
Sources: Merger Agreement (Amgen Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: :
(I) all material operating and financial reports prepared by the Company and its Subsidiaries for the Company's senior management, including (A) upon copies of the request of Parent, unaudited monthly quarterly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly quarterly consolidated statements of operations, and, if prepared, statements of stockholders' equity and statements of cash flows; flows and (B) subject copies of any sales forecasts, development plans and hiring reports prepared for the Company's senior management;
(II) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits stockholders;
(III) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between any Acquired Corporation and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices);
(IV) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and and
(iiV) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
Appears in 1 contract
Sources: Merger Agreement (Agritope Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent Buyer and Parent's Buyer’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) promptly provide Parent Buyer and Parent's Buyer’s Representatives with such all reasonably requested information regarding the business of the Acquired Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent Buyer may reasonably request. During ; provided, however, that any such access shall be conducted at Buyer’s expense, at a reasonable time, under the Pre-Closing Period, supervision of appropriate personnel of the Company shalland in such a manner as not to unreasonably interfere with the normal operation of the business of the Company. Nothing herein shall require the Company to disclose any information to Buyer if such disclosure would, in its good faith judgment based on the advice of counsel (i) jeopardize any attorney-client or other legal privilege, (ii) contravene any applicable Legal Requirement or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party) or (iii) result in the disclosure of any trade secrets of third parties, provided that in each case the Company shall give notice to Buyer that it is withholding such information and thereafter the Company and Buyer shall use their respective reasonable best efforts to cause such information to be provided in a manner that would not reasonably be expected to violate such restriction or waive the privilege or protection (as applicable). With respect to the information disclosed pursuant to this Section 4.1, Buyer shall comply with, and shall cause the Buyer’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Confidentiality Agreement dated October 30, 2014, between Lyris Technologies, Inc. and Versata Enterprises, Inc. (the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions“Confidentiality Agreement”).
Appears in 1 contract
Sources: Merger Agreement (Lyris, Inc.)
Access and Investigation. During the period commencing on From the date of this Agreement and ending as until the earlier to occur of the earlier of the Effective Time Closing Date or the termination of this Agreement Agreement, Seller shall cause Longhorn to allow Buyer and its Representatives reasonable access, at all reasonable times during normal business hours, upon reasonable notice, to the officers, employees and other personnel, attorneys, accountants, lenders and other representatives, records and files, correspondence, audits and properties, as well as to all information relating to commitments, contracts, titles and financial position and results of operations, or otherwise pertaining to the business, operations, and affairs of the Longhorn Entities, including inspection of such properties. Notwithstanding the foregoing, no Longhorn Entity shall be required to provide any information that (x) it reasonably believes it may not provide to Buyer by reason of Legal Requirements, (y) the "Predisclosure of which would reasonably be expected to jeopardize applicable attorney/client privilege or work product protections; provided that Buyer and Seller shall consider in good faith on a case-Closing Period"by-case basis whether such privilege or protection may be preserved by entering into a common interest agreement, joint defense agreement or similar arrangement, or (z) it is required to keep confidential by reason of contract or agreement with third parties, provided that in lieu of providing any such contract or agreement Longhorn provides Buyer with a reasonably detailed summary of the material terms thereof. All requests for site visits and related discussions or questions regarding procedures shall be coordinated with the chief financial officer or chief legal officer of Seller, unless such individual directs otherwise, and in no event shall Buyer or anyone on Buyer’s behalf communicate with any past, present or prospective supplier, customer, consultant, creditor, bank or employee of Seller or any Longhorn Entity, or with any Governmental Entity, concerning or related to the Transactions contemplated by this Agreement, unless Seller consents in advance to such communication, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the term “inspection” herein shall not encompass, and neither Buyer nor its Representatives shall be entitled to conduct (except as may be consented to in writing by Seller in its sole discretion), any Phase I review (whether conducted pursuant to applicable ASTM standards or otherwise) or any invasive, surface or subsurface testing or sampling, whether contemplated by any on-site investigation conducted in accordance with the Company current ASTM standards for the conduct of a Phase II on-site investigation or otherwise, including any soil borings, hand borings, geoprobes, test pits or monitoring w▇▇▇▇. IN CONNECTION WITH ANY ENVIRONMENTAL DUE DILIGENCE, SUBJECT TO SECTIONS 7.2(d) and 7.2(f)(vii), BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD SELLER, THE LONGHORN ENTITIES AND EACH OF THE BUYER INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES (AS DEFINED IN SECTION 10.2(a)(i) AND BELOW IN THIS SECTION 5.1) ARISING OUT OF OR RELATING TO THE DUE DILIGENCE CONDUCTED BY, BUT ONLY TO THE EXTENT CAUSED BY, BUYER, BUYER’S AFFILIATES OR ANY PERSON ACTING ON BUYER’S OR ITS AFFILIATES’ BEHALF, IN CONNECTION WITH ANY REAL PROPERTY SITE VISITS, REAL PROPERTY SITE INSPECTIONS AND ANY SAMPLING OF ANY ENVIRONMENTAL MEDIA FROM ANY REAL PROPERTY (IF AND TO THE EXTENT SELLER CONSENTS TO SUCH ACTIVITIES). Without limiting the foregoing, for purposes of this Section 5.1, “Damages” includes demands, claims, lawsuits, causes of action, losses, investigations and other proceedings, and other elements of “Damages” related thereto, brought by or asserted by the Longhorn Entities’ customers and the owners of any affected Leased Real Property. Buyer shall, and shall cause its Representatives to, in connection with the respective Representatives conduct of the Acquired Corporations to: (a) provide Parent due diligence investigations described in this Section 5.1, comply fully with all rules, regulations, policies and Parent's Representatives with reasonable access during normal business hours instructions reasonably issued by Seller or the Longhorn Entities and provided to the Acquired Corporations' RepresentativesBuyer regarding such Person’s actions while upon, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably requestentering or leaving any Real Property. During the Pre-Closing Period, the Company shallBuyer shall not, and shall cause its Representatives not to, unreasonably interfere with the Representatives of each day-to-day operations of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate Business in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of conducting any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsdue diligence activities.
Appears in 1 contract
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause each of the other Acquired Companies to, and shall use its commercially reasonable efforts to cause its and their respective Representatives of the Acquired Corporations to: (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel personnel, properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (bii) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies and with such additional financial, operating and other data and information regarding the Acquired Companies, in each case, (A) as Parent may reasonably request, (B) under the supervision of appropriate personnel of the Company, (C) in such a manner not to unreasonably interfere with the usual operation of the Acquired Companies, (D) to the extent reasonably related to the Contemplated Transactions and (E) with respect to books, records, Tax Returns, work papers and other documents and information relating to the Acquired Companies, additional financial, operating and other data and information regarding the Acquired Companies, solely to the extent such items are in the possession or control of the Acquired Companies or any of their respective Representatives. During Without limiting the generality of the foregoing (but subject to the limitations in the preceding sentence), during the Pre-Closing Period, the Company shallshall as soon as reasonably practicable provide Parent, upon request, with copies of all material operating and financial reports prepared by the Acquired Companies for the Company’s CEO or CFO. Notwithstanding the foregoing: (1) nothing in this Section 4.1(a) shall require any Acquired Company or its Representatives to disclose any information to Parent or Parent’s Representatives if, in the reasonable and good faith judgment of the Company, such disclosure (v) relates to the strategic process known as “Project Airport”, (w) would violate any applicable law, (x) would jeopardize the attorney-client privilege, work-product doctrine or other legal privilege held by any Acquired Company, (y) is prohibited pursuant to the terms of confidentiality provisions in a Company Contract with a third party entered into prior to the date of this Agreement or (z) would violate the Clean Team Agreement; and (2) if any Acquired Company does not provide or cause its Representatives to provide such access or such information in reliance on clause “(1)” of this sentence, then the Representatives of each Company shall as soon as reasonably practicable (and in any event within three
(1) (x)”, “
(1) (y)” or “
(1) (z)” shall use its commercially reasonable efforts to provide the applicable information in a way that would not violate such law, jeopardize such privilege, violate such Company Contract or violate the Clean Team Agreement.
(b) The Confidentiality Agreement (other than Sections 12 and 13 thereof) shall remain in full force and effect in accordance with its terms until the Effective Time, at which time the Confidentiality Agreement shall automatically terminate without further action. All obligations of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice Companies and during normal business hours, with the chief financial officer Parent Entities’ obligations under Sections 12 and other officers 13 of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company Confidentiality Agreement shall promptly provide Parent with copies of: (A) terminate upon the request execution and delivery of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsthis Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ansys Inc)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the earlier termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours hours, on reasonable prior notice, to the Acquired Corporations' Representatives, Company’s personnel and assets (tangible and intangible, including Intellectual Property) and to all existing books, records, financial statements, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany and each of its Subsidiaries; and (b) provide or make available to Parent and Parent's Representatives with ’s Representatives, at Parent’s expense, such copies of the existing books, records, financial statements, Tax Returns, work papers and other documents and information relating to the Acquired Corporations business, results of operations, properties (tangible and intangible, including Intellectual Property) and personnel of the Company or any of its Subsidiaries as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations Period and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, the Company and Parent shall promptly provide the other party with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Company, Parent or Merger Sub, as applicable, in connection with the Merger or any of the other Contemplated Transactions; and . The foregoing shall not require the Company to permit any inspection, or to disclose any information, to the extent that in the reasonable judgment of the Company could reasonably be expected to result in (i) the violation of any written obligations of the Company or any of its Subsidiaries to an unaffiliated third party with respect to confidentiality or non-disclosure, (ii) subject the waiver of any applicable attorney-client privilege or (iii) the violation of any applicable Legal Requirement. Subject to compliance with applicable Antitrust LawsLegal Requirements, Parent shall promptly provide during the Pre-Closing Period, the Company shall use commercially reasonable efforts to notify Parent of, and confer from time to time as reasonably requested by Parent with one or more Representatives of Parent to discuss, any material changes or developments in the operational matters of the Company and each Subsidiary of the Company and the general status of the ongoing operations of the Company and each Subsidiary of the Company. No information or knowledge obtained in any investigation pursuant to this Section 4.1 or otherwise shall affect or be deemed to modify any representation or warranty contained herein or the Company's Representatives with copies of any material notice, report or other document filed with or sent conditions to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any obligations of the other Contemplated Transactionsparties hereto to consummate the Merger.
Appears in 1 contract
Sources: Merger Agreement (Transmeta Corp)
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and personnel, properties, assets and to all existing books, Contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide furnish promptly to Parent and Parent's ’s and its Subsidiaries’ Representatives with such copies of the existing books, contracts, projections, plans, records, filings, submissions, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations’ business, properties, prospects and personnel, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Company, and in such a manner as to not to interfere unreasonably with the normal operation of the business of the Company. During With respect to the information disclosed pursuant to this Section 5.1, Parent shall comply with, and shall instruct the applicable Representatives of Parent to comply with, all of its confidentiality and non-use obligations under the Confidentiality Agreement dated January 12, 2015, between the Company and Parent (the “Confidentiality Agreement”). In addition, subject to applicable Law, during the Pre-Closing Period, the parties shall coordinate with each other and the other’s Representatives with respect to communications with Company shall, Associates and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice customers and during normal business hours, with the chief financial officer and other officers vendors of the Company responsible for regarding post-Closing transition, integration and related matters; provided, however, that any such communications shall be conducted in such a manner as to not interfere with the normal operation of the business of the Company's financial statements and .
(b) Nothing herein shall require the internal controls of Company to disclose any information to Parent if such disclosure would, in the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoingCompany’s reasonable judgment after consultation with outside legal counsel, during the Pre-Closing Period: (i) jeopardize any attorney client or other legal privilege (provided, that the Company will nonetheless provide Parent and the applicable Representatives of Parent with appropriate information regarding the factual basis underlying any circumstances that resulted in the preparation of such privileged analyses so long as such privilege will not be jeopardized thereby) or (ii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement, including any confidentiality agreement to which the Company or its Affiliates is a party (provided, that the Company shall promptly provide use its commercially reasonable efforts to obtain the consent of any such agreement’s counterparty to such inspection or disclosure). The Company and Parent with copies of: (A) upon will each use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure under circumstances in which the request of Parent, unaudited monthly consolidated balance sheets restrictions of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionspreceding sentence apply.
Appears in 1 contract
Access and Investigation. (a) During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives ensure that each of the other Acquired Corporations toCompanies and its and their respective Representatives: (ai) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel management, properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies upon reasonable advance notice during normal business hours of the Company and in such a manner as to not unreasonably interfere with the normal operation of the business of the Company; and (bii) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent Parent, upon request, with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of all material operating and financial reports prepared by the Acquired Corporations and Companies for the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flowsCompany’s senior management; and (B) subject any written materials or communications sent by or on behalf of the Company to applicable Antitrust Laws, its stockholders; (C) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Companies in connection with the Merger or any of the other Contemplated Transactions; and (iiD) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the Acquired Companies from any Governmental Body. Notwithstanding the foregoing: (1) nothing in this Section 4.1 shall require any Acquired Company or its Representatives to disclose any information to Parent or Parent’s Representatives if such disclosure would: (x) violate any applicable Legal Requirement; (y) jeopardize the attorney-client privilege or similar legal privilege applicable to such information; or (z) violate any confidentiality agreement with a third party to which any Acquired Company is a party as of the date of this Agreement; and (2) if any Acquired Company does not provide or cause its Representatives to provide such access or such information in reliance on clause “(1)” above, the Company shall: (aa) promptly (and in any event within two Business Days) provide a written notice to Parent stating that it is withholding such access or such information and stating the justification therefor; and (bb) use commercially reasonable efforts to provide the applicable information in a way that would not violate such Legal Requirement or confidentiality agreement or jeopardize such privilege.
(b) The Confidentiality Agreement (other Contemplated Transactionsthan Sections 6 and 7 thereof) shall remain in full force and effect in accordance with its terms until the Effective Time, at which time the Confidentiality Agreement shall automatically terminate without further action. Sections 6 and 7 of the Confidentiality Agreement shall terminate upon the execution and delivery of this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (ADESTO TECHNOLOGIES Corp)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with upon reasonable access during normal business hours advance notice to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing PeriodCompany, the Company shall, and shall cause the Representatives of each the Company to, provide Parent and Parent’s Representatives with reasonable access to the Company’s properties, offices, books and records, Contracts, commitments and personnel (other than any of the Acquired Corporations toforegoing to the extent specifically related to the negotiation and execution of this Agreement or any sale process preceding the execution and delivery of this Agreement, permit or, except as expressly provided in Section 4.3(d) or Section 5.1, to any Acquisition Proposal), in each case as Parent reasonably requests for purposes of furthering or preparing for the consummation of the Merger or the other Transactions or reasonable integration planning; provided, however, that any such access shall be conducted at Parent's senior officers to meet’s sole cost and expense, upon at a reasonable notice and time during the Company’s normal business hours, under the supervision of appropriate personnel of the Company, and in such a manner as not to unreasonably interfere with the chief financial officer normal operation of the business of the Company, and other officers shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to permit any inspection or testing, or to disclose any information, that in the reasonable judgement of the Company responsible for would be materially detrimental to the Company's financial statements and ’s business or operations nor shall anything herein require the internal controls Company to disclose any information to Parent if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client privilege (provided, that the Company shall use its commercially reasonable efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege), (ii) contravene any applicable Legal Requirement, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party), (iii) result in the disclosure of any valuations of the Acquired Corporations Company prepared in connection with the Transactions or any other strategic alternative or (iv) result in the disclosure or use of such document or information in any Legal Proceeding between the Parties. With respect to discuss such matters as the information disclosed pursuant to this Section 4.1, Parent may deem necessary or appropriate in order shall comply with, and shall instruct Parent’s Representatives to enable Parent to satisfy comply with, all of its obligations under that certain Mutual Confidentiality Agreement dated May 7, 2024, between the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Company and Parent or one of its Affiliates (the rules “Confidentiality Agreement”). All requests for information made pursuant to this Section 4.1 shall be directed to the executive officer or other Person designated by the Company. Notwithstanding anything in this Section 4.1 to the contrary, (A) any physical access to the properties, offices, personnel or other information of the Company may be limited to the extent the Company in good faith determines, in light of a Contagion Event or any Pandemic Measures, that such access would reasonably be expected to jeopardize the health and regulations relating thereto. Without limiting the generality safety of any of the foregoing, during the Pre-Closing Period: Company Associate (i) provided that the Company shall promptly use commercially reasonable efforts to provide Parent with copies of: such access as can be provided (Aor otherwise convey such information regarding the applicable matter as can be conveyed) upon in a manner without jeopardizing the request health and safety of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; such Company Associate or violating such Pandemic Measures) and (B) subject nothing in this Section 4.1 shall be construed to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of require the Acquired Corporations in connection with the Merger Company or any of the other Contemplated Transactions; and (ii) subject their respective Representatives to applicable Antitrust Lawsprepare any financial statements, Parent shall promptly provide the Company projections, reports, analyses, appraisals or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsopinions that are not readily available.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company shall, and shall cause the respective Representatives of the Acquired Corporations Companies to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets Assets; provided, however, that any such access shall be coordinated through senior management of the Company (and Company counsel) and the Company shall have the right to all existing booksapprove in advance the script, recordsif any, Tax Returnsto be used in connection with such access, work papers and other documents and information relating such approval not to the Acquired Corporationsbe unreasonably withheld; and (b) provide Parent and Parent's ’s Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information (including information on bank accounts and investments) regarding the Acquired Companies and their financial condition, as Parent may reasonably request. During ; (c) provide to Parent all information concerning the Pre-Closing Period, Acquired Companies’ business that Parent reasonably requests; (d) permit Parent and its Representatives to contact major customers of the Company shall, and shall cause the Representatives of each businesses of the Acquired Corporations toCompanies; provided, permit Parent's however, that any customer contact shall be coordinated through senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers management of the Company responsible (and Company counsel), and the Company shall have the right to approve in advance the script, if any, to be used in connection with such customer contact, such approval not to be unreasonably withheld; (e) provide Parent and Parent’s Representatives with reasonable access to the Owned Real Property, and subject to the terms of each Real Property Lease, the Leased Real Property, for the Company's financial statements purpose of conducting phase I environmental site assessments; provided, however, that any access shall be coordinated through senior management of the Company (and Company counsel), and the internal controls Company shall have the right to approve in advance the script, if any, to be used in connection with such access, such approval not to be unreasonably withheld; and (f) provide notice of the Acquired Corporations transactions contemplated by this Agreement to discuss such matters as Parent may deem necessary any and all unions or appropriate in order to enable Parent to satisfy labor organizations representing any employees of the Company or its obligations under Subsidiaries; provided, however, that any notice shall be coordinated through senior management of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Company (and Company counsel), and the rules and regulations relating theretoCompany shall have the right to approve in advance any notice, such approval not to be unreasonably withheld. Without limiting the generality of any of the foregoing, during the Pre-Closing Period, the Company shall furnish promptly to Parent: (i) the Company shall promptly provide Parent with copies of: (A) upon the request a copy of Parenteach report, unaudited monthly consolidated balance sheets of the Acquired Corporations schedule, registration statement and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed by the Company during the Pre-Closing Period with the SEC; (ii) any material notice, document or other communication sent or proposed to any Governmental Body be sent by or on behalf of any of the Acquired Corporations Companies to any party to any Specified Contract of a type described in connection with the Merger or any of the other Contemplated Transactions; subsections (a), (b) and (iic) subject of Section 3.14 or, solely with respect to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report document or other document filed with or communication alleging a breach of any Specified Contract of a type described in subsections (a), (b) and (c) of Section 3.14, sent to any Governmental Body of the Acquired Companies by any party to any such Specified Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Company and the other party to any such Specified Contract and that is of the type sent in the ordinary course of business and consistent with past practices); (iii) all other written information concerning its business, properties and personnel as Parent may reasonably request. In addition, the Company shall during the Pre-Closing Period give written notice to Parent, and Parent shall during the Pre-Closing Period give prompt written notice to the Company of (a) the discovery by such party of any event, condition, fact or circumstance that occurred or existed on behalf or prior to the date of Parent this Agreement and that caused or Merger Sub constitutes a material inaccuracy in connection any representation or warranty made by such party in this Agreement; (b) the discovery by such party of any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by such party in this Agreement if such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance; (c) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; (d) the Merger occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the other Contemplated Transactionsconditions set forth in Section 7 impossible or unlikely or that has had or would reasonably be expected to have a Material Adverse Effect; or (e) the commencement of any litigation or Proceeding against or affecting this Agreement, or the Merger; provided, however, in the case of subsections (a) and (b) of this sentence, the notice may be given within three (3) Business Days of the applicable discovery. Notwithstanding anything in this Section 5.1 to the contrary, no notice, report or document given pursuant to this Section 5.1 shall have any effect on the representations, warranties, covenants or agreements contained in this Agreement for purposes of determining satisfaction of any condition contained herein.
Appears in 1 contract
Sources: Merger Agreement (Systems & Computer Technology Corp)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Offer Acceptance Time or and the termination of this Agreement pursuant to Section 8.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' Company’s Representatives, personnel personnel, officers, employees, agents, properties, offices and other facilities and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) promptly provide Parent and Parent's ’s Representatives with such all reasonably requested information regarding the business, properties, contracts, assets, liabilities, capitol stock, personnel and other aspects of the Acquired Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period; provided, the Company shallhowever, and that any such access shall cause the Representatives of each of the Acquired Corporations tobe conducted at Parent’s expense, permit Parent's senior officers to meetat a reasonable time, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality supervision of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the related unaudited monthly consolidated statements normal operation of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any the business of the Acquired Corporations. Nothing herein shall require the Acquired Corporations in connection with the Merger to disclose any information concerning Acquisition Proposals, which shall be governed by Section 5.3(c), or any information to Parent if such disclosure would, in the reasonable good faith judgment of the Company (i) jeopardize any attorney-client or other Contemplated Transactionslegal privilege or (ii) contravene any applicable Legal Requirement, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Acquired Corporation or its Affiliates is a party); provided, further, that with respect to clauses (i) and (ii) of this Section 5.1, the Company, as applicable, shall use its commercially reasonable efforts to (A) obtain the required consent of any such third party to provide such inspection or disclosure, (B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent or (C) utilize the procedures of a joint defense agreement or implement such other techniques if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Acquired Corporation determines doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws. To the extent that any of the information or material furnished pursuant to this Section 5.1 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine. With respect to the information disclosed pursuant to this Section 5.1, Parent shall promptly provide comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidentiality Agreement dated October 23, 2015, between the Company or and Parent (the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions“Confidentiality Agreement”).
Appears in 1 contract
Sources: Merger Agreement (Sequenom Inc)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' ’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) promptly provide Parent and Parent's ’s Representatives with such all reasonably requested information regarding the business of the Acquired Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During ; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the Pre-Closing Period, the Company shall, and shall cause the Representatives supervision of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers appropriate personnel of the Company responsible for and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company's financial statements . Nothing herein shall require the Company to disclose any information to Parent if such disclosure would, in its reasonable discretion (i) jeopardize any attorney-client or other legal privilege, (ii) contravene any applicable Legal Requirement, fiduciary duty or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party) or (iii) result in the disclosure of any trade secrets of third parties. Without limiting the foregoing, in the event that the Company does not disclose information in reliance on the preceding sentence, it shall provide notice to Parent that it is withholding such information and shall use its reasonable best efforts to communicate, to the internal controls extent feasible, the applicable information in a way that would not violate the applicable Legal Requirements, Contract or obligation or risk waiver of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoprivilege. Without limiting the generality of any this Section 4.1, from the date of this Agreement until the foregoingEffective Time, during the Pre-Closing Period: Company will furnish to the Parent promptly upon written request by Parent (to the extent such items become available), (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parentmonthly financial statements, including an unaudited monthly consolidated balance sheets of the Acquired Corporations sheet, income statement and the related unaudited monthly consolidated statements of operations, and, if prepared, statements statement of cash flows; and (B) subject to applicable Antitrust Lawsflows for each month through the Closing Date, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject any material update of its outlook for the quarter or the balance of the fiscal year as it may prepare for management’s internal use and (iii) monthly same store results. With respect to applicable Antitrust Lawsthe information disclosed pursuant to this Section 4.1, Parent shall promptly provide comply with, and shall cause Parent’s Representatives to comply with, all of its obligations under the Confidentiality Agreement dated January 21, 2013, as amended, between the Company or and Sycamore Partners Management, L.L.C. (the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions“Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the its Subsidiaries and its and their respective Representatives of the Acquired Corporations to: (a) , provide Parent and Parent's ’s Representatives with reasonable access during normal business hours (including electronic access) to each of the Acquired Corporations' RepresentativesCompany’s properties, personnel personnel, offices, books and assets and to all existing books, records, Tax ReturnsContracts, commitments, work papers papers, and other documents and information relating to the Acquired Corporations; and Company (b) provide Parent and Parent's Representatives with such copies other than any of the existing books, records, Tax Returns, work papers and other documents and information relating foregoing to the Acquired Corporations extent specifically related to the negotiation and execution of this Agreement or any sale process preceding the execution and delivery of this Agreement, or, except as expressly provided in Section 4.1 or Section 5.1, to any Acquisition Proposal), in each case as Parent may reasonably request. During requests; provided, however, that any such access shall be conducted at Parent’s sole cost and expense, at a reasonable time during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during Company’s normal business hours, under the supervision of appropriate personnel of the Company, and in such a manner as not to unreasonably interfere with the chief financial officer normal operation of the business of the Company, and other officers shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to permit any inspection or physical testing of real property that in the reasonable judgement of the Company responsible would be detrimental to the Acquired Companies’ business or operations if the Transactions are not consummated nor shall anything herein require the Company to disclose any information to Parent if such disclosure would reasonably be expected to (i) jeopardize any attorney-client or other legal privilege (provided, that the Company shall use its reasonable best efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not result in a loss of attorney-client or other legal privilege), (ii) contravene any applicable Legal Requirement or binding agreement entered into prior to the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party); provided, that the Company shall use its commercially reasonable efforts to take actions to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not contravene such applicable Legal Requirement or binding agreement; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company determines, after consultation with outside legal counsel, that doing so may be reasonably required for the Company's financial statements and purpose of complying with applicable Antitrust Laws, or (iii) result in the internal controls disclosure of any valuations of the Acquired Corporations Company prepared in connection with the Transactions or any other strategic alternative. With respect to discuss such matters as the information disclosed pursuant to this Section 4.1, Parent may deem necessary or appropriate in order shall comply with, and shall instruct Parent’s Representatives to enable Parent to satisfy comply with, all of its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoingConfidentiality Agreement dated March 14, during the Pre-Closing Period: (i) 2023, between the Company shall promptly provide Parent with copies of: (A) upon the request of and Parent, unaudited monthly consolidated balance sheets of and amended by that certain Confidentiality Agreement Extension Amendment, dated June 25, 2024, between the Acquired Corporations Company and Parent (the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject “Confidentiality Agreement”). All requests for information made pursuant to applicable Antitrust Laws, any notice, report this Section 4.1 shall be directed to the executive officer or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or Person designated by the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 1 contract
Sources: Merger Agreement (PetIQ, Inc.)
Access and Investigation. During the period commencing on from the date of this Agreement and ending as through the acceptance of shares of Company Common Stock for purchase pursuant to the earlier of the Effective Time or the termination of this Agreement Offer (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations Companies to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired CorporationsCompanies' Representatives, personnel and assets Assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies and their financial condition, as Parent may reasonably request. During ; (c) provide to Parent all information concerning the Pre-Closing Period, Acquired Companies' business that Parent reasonably requests; (d) permit Parent and its Representatives to contact major customers of the Company shall, and shall cause the Representatives of each businesses of the Acquired Corporations toCompanies; provided, permit Parent's however, that any customer contact shall be coordinated through senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers management of the Company responsible for the Company's financial statements (and Company counsel), and the internal controls Company shall have the right to approve in advance the script, if any, to be used in connection with such customer contact; and (e) advise Parent of any changes in the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate shares of Company Common Stock being held in order to enable Parent to satisfy its obligations under escrow in connection with the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. acquisition of Altra Software Services, Inc. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: , the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by the Company during the Pre-Closing Period with the SEC, and (ii) all other information concerning its business, properties and personnel as Parent may reasonably request. In addition, the Company shall promptly provide Parent with copies of: (A) upon during the request of Pre-Closing Period give prompt written notice to Parent, unaudited monthly consolidated balance sheets and the Parent shall during the Pre-Closing Period give prompt written notice to the Company, if it becomes aware of (a) any representation or warranty made by it contained in this Agreement becoming untrue or inaccurate in any material respect, (b) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement, (c) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the Acquired Corporations and conditions set forth in Annex I impossible or unlikely or that has had or would reasonably be expected to have a Material Adverse Effect, or (d) the related unaudited monthly consolidated statements commencement of operationsany litigation or Proceeding against or affecting this Agreement, andthe Offer or the Merger. Notwithstanding anything in this Section 5.1 to the contrary, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any no notice, report or other document filed with given pursuant to this Section 5.1 shall have any effect on the representations, warranties, covenants or sent to any Governmental Body on behalf agreements contained in this Agreement for purposes of determining satisfaction of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionscondition contained herein.
Appears in 1 contract
Sources: Merger Agreement (Caminus Corp)
Access and Investigation. During Except as prohibited by applicable Legal Requirements, during the period commencing on from the date of this Agreement and ending as of continuing until the earlier of the Effective Time or the termination of this Agreement pursuant to Section 8 or the Closing (the "“Pre-Closing Period"”), the Company shall, and shall cause its Subsidiaries and Affiliates to, and the respective Company shall direct each of its Representatives of the Acquired Corporations to: (a) provide Parent Purchaser and Parent's Representatives Purchaser’s Affiliates and Representatives, upon reasonable prior notice, with reasonable access during normal business hours to the Acquired Corporations' Companies’ premises, Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and provided, however, that no Acquired Company shall be required to: (a) take any action that would constitute a waiver of attorney-client or other similar legal privilege or would divulge any Seller’s confidential information not related to any Acquired Company or the transactions contemplated by this Agreement; or (b) supply Purchaser with any information that the Sellers’ Representative reasonably determines that any Acquired Company is under a contractual or legal obligation not to supply; provided, further that, if any Acquired Company does not disclose any information in reliance on the foregoing clauses “(a)” and “(b)” (after receiving a request for any such information from Purchaser), it shall provide Parent notice to Purchaser that it is withholding such information and Parent's Representatives with such copies shall use commercially reasonable efforts to allow access or disclosure, to the fullest extent feasible, of the existing books, records, Tax Returns, work papers and other documents and applicable information relating to in a manner that would not result in the Acquired Corporations as Parent may reasonably requestbasis for such nondisclosure. During the Pre-Closing Period, Purchaser may, with the prior consent of the Sellers’ Representative (not to be unreasonably withheld, conditioned or delayed), make inquiries of Persons having business relationships with the Acquired Companies; provided, further, that Purchaser shall coordinate all contact with such Persons through the Sellers’ Representative or its designee and the Acquired Company shall, and shall cause the Representatives of each of the Acquired Corporations its Subsidiaries to, permit Parent's senior officers to meet, upon reasonable notice facilitate and during normal business hours, reasonably cooperate with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Purchaser in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionssuch permitted inquiries.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of through the earlier of (A) the Effective Time or and (B) the termination of this Agreement pursuant to the terms of Section 8.1 (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a1) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b2) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: (i) all material operating and financial reports prepared by the Acquired Corporations for the Company's senior management, including (A) upon copies of the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of shareholders' equity and statements of cash flows; flows and (B) subject copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company's senior management; (ii) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits shareholders; (iii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices); (iv) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Arrangement or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and (iiv) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body. 32. <PAGE> (b) Parent and the Company agree that the Confidentiality Agreement shall apply to all documents and information provided to Parent pursuant to Section 4.1(a). 4.2 Operation of the Company's Business.
Appears in 1 contract
Sources: Arrangement Agreement
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), subject to applicable confidentiality protections and consistent with Requirements of Law, the Company shall, Seller shall (and shall cause the respective Representatives of the Acquired Corporations Company and its Subsidiary to: ): (a) provide Parent the Purchaser and Parentthe Purchaser's Representatives representatives with reasonable access during normal business hours hours, upon reasonable notice to the Acquired Corporations' RepresentativesGeneral Counsel of the Seller (which, personnel unless contrary notice is provided to the Purchaser, shall be deemed to be the General Counsel of Parent), to the Company's and its Subsidiary's assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany and its Subsidiary, whether held by the Company, its Subsidiary, the Seller or the Parent; and (b) provide Parent or make available to the Purchaser and Parentthe Purchaser's Representatives with representatives such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company and its Subsidiary, whether held by the Company, its Subsidiary, the Seller or the Parent, as Parent the Purchaser may reasonably request. During In addition, during the Pre-Closing Period, subject to applicable confidentiality protections and consistent with Requirements of Law, the Company shall, Seller shall (and shall cause the Representatives Company and its Subsidiary to) assist Purchaser in gaining a greater understanding of each of the Acquired Corporations to, permit Parent's senior officers its operations to meet, upon reasonable notice and during normal business hours, facilitate a transition to integrated management with the chief financial officer and other officers of the Company responsible for Purchaser's operations post Closing, including by providing (w) ongoing updates with respect to the Company's commodity positions from and after January 1, 2008 as a result of putting in place incremental retail and wholesale Contracts; (x) reasonable access to the Company's supply personnel, operational data and pricing models; (y) risk reports, prepared on a daily and monthly basis, showing the Company's net open position and daily profit and loss change; and (z) monthly financial statements and prepared on a basis consistent with the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretoCompany's historical practices. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) Period and subject to applicable confidentiality protections and consistent with Requirements of Law, the Company Seller and the Purchaser shall promptly provide Parent the other party with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Seller or the Purchaser, as applicable, in connection with the Merger transactions contemplated herein. The foregoing shall not require the Seller to permit any inspection, or to disclose any information, that could reasonably be expected to result in (i) the disclosure of any trade secrets of third parties or the violation of any obligations of the other Contemplated Transactions; and (ii) subject to applicable Antitrust LawsSeller, Parent shall promptly provide the Company or the Company's Representatives Subsidiary with copies respect to confidentiality if the Seller shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure; (ii) the waiver of any material noticeapplicable attorney-client or work product privilege so long as the Seller has taken reasonable steps to permit inspection of or to disclose information described in this clause (ii) on a basis that does not compromise the Seller's, report the Company's or other document filed the Company's Subsidiary's privilege with respect thereto; or sent to (iii) the violation of any Governmental Body on behalf applicable Requirements of Parent Law. The parties shall seek in good faith appropriate substitute disclosure arrangements under circumstances in which the immediately preceding sentence applies. No investigation by the Purchaser shall limit or Merger Sub in connection with the Merger or otherwise affect any of the other Contemplated Transactionsrepresentations, warranties, covenants or obligations of the Seller contained in this Agreement.
Appears in 1 contract
Access and Investigation. During the period commencing on (a) Between the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period")Date, the Company shalleach Shareholder will, and shall will cause the respective Mexico SRL and its Representatives of the Acquired Corporations to: , (ai) provide Parent afford Buyers and Parent's their Representatives with (collectively, "Advisors") reasonable access during normal business hours to the Acquired Corporations' RepresentativesMexico SRL's properties, personnel contracts, books and assets and to all existing books, records, Tax Returns, work papers records and other documents and information relating to the Acquired Corporations; data, (ii) furnish Buyers and (b) provide Parent and Parent's Representatives their Advisors with such copies of the existing booksall such contracts, books and records, Tax Returns, work papers and other existing documents and information relating to the Acquired Corporations data as Parent Buyers and/or their Advisors may reasonably request. During the Pre-Closing Period, the Company shall(iii) furnish Buyers and their Advisors with such additional financial, operating and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers other data and information as Buyers and/or their Advisors may reasonably request and (iv) make available to meetBuyers and their Advisors, upon reasonable advance notice and during normal business hours, with the chief financial officer and other officers of Mexico SRL as Buyers and/or their Advisors may reasonably request.
(b) Between the Company responsible for the Company's financial statements date of this Agreement and the internal controls of the Acquired Corporations Closing Date, Cinemex will, and will cause each Cinemex Company and their respective Representatives to discuss such matters as Parent may deem necessary or appropriate in order use their Best Efforts to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the Company shall promptly provide Parent with copies of: (A) afford Buyers and their Advisors reasonable access during normal business hours and upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any reasonable advance notice, report or to each Cinemex Company's properties, contracts, books and records and other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; documents and data, (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives furnish Buyers and their Advisors with copies of any material noticeall such contracts, report or books and records, and other document filed existing documents and data as Buyers and/or their Advisors may reasonably request, (iii) furnish Buyers and their Advisors with or sent such additional financial, operating and other data and information concerning Cinemex as Buyers and/or their Advisors may reasonably request and as may be reasonably available to any Governmental Body on behalf Cinemex and (iv) make available to Buyers and their Advisors, upon reasonable advance notice and during normal business hours, the officers of Parent or Merger Sub in connection each Cinemex Company as Buyers and/or their Advisors may reasonably request; provided, that such availability shall not interfere with the Merger normal operations of such Cinemex Company. Any information heretofore or hereafter obtained from any party hereto shall be subject to and shall be held in accordance with the terms of the other Contemplated TransactionsConfidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Loews Cineplex Entertainment Corp)
Access and Investigation. During the period commencing on the date of this Agreement and ending as of the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations Company and its Subsidiaries to, permit (i) provide Parent and Parent's senior officers to meet’s Representatives with reasonable access, upon reasonable notice and to the Company’s Chief Financial Officer, during normal business hours, with hours to the chief financial officer and other officers Representatives of the Company responsible for and its Subsidiaries, personnel and assets, books, records, Tax Returns, work papers, and other documents, and additional financial, operating, and other data and information regarding the Company's financial statements Company and the internal controls of the Acquired Corporations its Subsidiaries, and provide copies thereof to discuss such matters Parent, in each case as Parent may deem necessary or appropriate in order reasonably request and (ii) cause its officers to enable confer regularly with Parent to satisfy its obligations under concerning the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any status of the foregoingCompany’s business as Parent may reasonably request. In addition, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: (A) upon all material operating and financial reports prepared by the request Company and its Subsidiaries for the Company’s management, including copies of Parent, the unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flowsfinancial statements; and (B) any other written reports or other written materials requested by Parent.
(b) Notwithstanding Section 4.2(a), but subject to applicable Antitrust LawsSection 4.4(b)(iii), any notice, report the Company shall not be required to provide such access if it determines that it would unreasonably disrupt or other document filed with impair the business or sent to any Governmental Body on behalf of any operations of the Acquired Corporations in connection with the Merger Company or any of its Subsidiaries. Nothing in this Agreement (except Section 4.4(b)(iii)) shall require the other Contemplated Transactions; and Company or any of its Subsidiaries to disclose information to the extent such information would result in a waiver of attorney-client privilege, work product doctrine or similar privilege or violate any confidentiality obligation of such Party existing as of the date of this Agreement. Nothing in this Agreement (except Section 4.4(b)(iii)) shall require the Company or any of its Subsidiaries to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company or any of its Subsidiaries, would result in: (i) the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality or (ii) subject any violation of any Legal Requirement relating to applicable Antitrust Lawsthe sharing of information between competitors, Parent shall promptly provide it being understood that the Company or the Company's Representatives with copies of any material noticeand its Subsidiaries shall provide extracts, report summaries, aggregations or other document filed information to the greatest extent practicable in a manner that does not result in any such violation or improper disclosure.
(c) Parent and the Company shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations under the Confidentiality Agreement with or sent respect to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactionsinformation disclosed under this Agreement, including, without limitation, this Section 4.2.
Appears in 1 contract
Access and Investigation. During the period commencing on from the date of this Agreement and ending as of until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 7.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company shall, and shall cause the its Subsidiaries and its and their respective Representatives of the Acquired Corporations to: (a) , provide Parent and Parent's ’s Representatives with reasonable access during normal business hours (including electronic access) to each of the Acquired Corporations' RepresentativesCompany’s properties, personnel personnel, offices, books and assets and to all existing books, records, Tax ReturnsContracts, commitments, work papers and other documents and information relating to the Acquired Corporations; Company and (b) provide Parent and Parent's Representatives with such copies of the existing books, such books and records, Tax ReturnsContracts, commitments, work papers and other documents and information relating to the Acquired Corporations Company (other than any of the foregoing to the extent specifically related to the negotiation and execution of this Agreement or any sale process preceding the execution and delivery of this Agreement, or, except as expressly provided in Section 4.1 or Section 5.1, to any Acquisition Proposal), in each case as Parent may reasonably request. During requests solely for the Pre-Closing Period, purposes of furthering or preparing for the Company shall, and shall cause the Representatives of each consummation of the Acquired Corporations toMerger or the other Transactions; provided, permit however, that any such access shall be conducted at Parent's senior officers to meet’s sole cost and expense, upon at a reasonable notice and time during the Company’s normal business hours, with under the chief financial officer and other officers supervision of appropriate personnel of the Company responsible and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company, and shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to permit any inspection or physical testing of real property that in the reasonable judgment of the Company would be detrimental to the Acquired Companies’ business or operations if the Transactions are not consummated nor shall anything herein require the Company to disclose any information to Parent if such disclosure would, upon the advice of outside legal counsel, (a) jeopardize any attorney-client or other legal privilege (provided, that the Company shall use commercially reasonable efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not result in a loss of attorney-client or other legal privilege), (b) contravene any applicable Legal Requirement (provided, that the Company shall use commercially reasonable efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not contravene applicable Legal Requirement; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company determines, on the advice of outside legal counsel, that doing so may be reasonably required for the Company's financial statements and purpose of complying with applicable Antitrust Laws), (c) result in the internal controls disclosure of any valuations of the Acquired Corporations Company prepared in connection with the Transactions or any other strategic alternative, or (d) be for the purpose of disclosing such document or information in any Legal Proceeding between the Parties. With respect to discuss such matters the information disclosed pursuant to this Section 4.1, Parent shall comply with, as Parent may deem necessary or appropriate in order though it was the “Recipient” thereto, and shall instruct Parent’s Representatives to enable Parent to satisfy comply with, all of its obligations under that certain Confidentiality Agreement entered into between the Company and AngloGold ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and Holdings plc dated April 16, 2025 in respect of the rules and regulations relating theretoTransactions, which Confidentiality Agreement is set forth on Section 4.1 of the Company Disclosure Letter (the “Confidentiality Agreement”). Without limiting All requests for information made pursuant to this Section 4.1 shall be directed to the generality of executive officer or other Person designated by the Company. Despite anything in this Section 4.1 to the contrary, nothing in this Section 4.1 shall be construed to require any Acquired Company or any of its respective Representatives to prepare any financial statements, projections, reports, analyses, appraisals or opinions that are not readily available. Notwithstanding anything to the foregoingcontrary contained herein, during the Pre-Closing Period: (i) the Company shall (a) use commercially reasonable efforts to conduct its response to any audits, investigations or Legal Proceedings with respect to international trade, duties and customs matters actively and diligently, (b) keep Parent reasonably informed of all substantive developments and events relating to such matters (including by promptly provide forwarding copies to Parent with copies of: (A) upon the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report correspondence or other document filed with or materials sent to or received from any Governmental Body with respect thereto), (c) provide Parent (or Parent’s designated counsel or advisors) with an opportunity to review and comment on any substantive written filings or materials (including any correspondence) prepared by or on behalf of any the Company in connection with such matters, reasonably in advance of the Acquired Corporations submission of such filings or material, and (d) reasonably consult with Parent in connection with the Merger or any prosecution and defense of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Lawssuch matters; provided, Parent shall promptly provide however, that the Company or shall not be required to disclose any information to Parent pursuant to this sentence if such disclosure would, upon the Company's Representatives with copies advice of outside legal counsel, jeopardize any material notice, report attorney-client or other legal privilege (provided, that the Company shall use commercially reasonable efforts to allow the disclosure of such document filed with or sent to any Governmental Body on behalf information (or as much of Parent it as possible) in a manner that does not result in a loss of attorney-client or Merger Sub in connection with the Merger or any of the other Contemplated Transactionslegal privilege).
Appears in 1 contract
Access and Investigation. During (A) Except as required pursuant to a confidentiality agreement or similar agreement to which the period commencing on Company or its Subsidiaries is a party (which such Person shall use commercially reasonable efforts to cause the date of this Agreement and ending as of counterpart to waive), during the earlier of the Effective Time or the termination of this Agreement (the "Pre-Closing Period"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (ai) provide the Parent and Parent's Representatives with reasonable access during normal business hours access, at reasonable times and upon prior notice, to the Acquired Corporations' Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (bii) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: :
(I) all material operating and financial reports prepared by the Company and its Subsidiaries for the Company's senior management, including (A) upon copies of the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, operations and statements of cash flows; flows and (B) subject copies of any sales forecasts, development plans and hiring reports prepared for the Company's senior management;
(II) any written materials or communications sent by or on behalf of the Company to applicable Antitrust Lawsits shareholders;
(III) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between any Acquired Corporation and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices);
(IV) any notice, report or other document filed with or sent to any Governmental Body on behalf of in connection with any of the Acquired Corporations in connection with the Merger or transactions contemplated by this Agreement; and
(V) any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
(B) The parties acknowledge that all investigations and discussions conducted by each of them pursuant to this Section 4.1 shall be subject to the Confidentiality Agreement.
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Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "“Pre-Closing Period"”), the Company Acquired Companies shall, and shall cause the respective their Representatives of the Acquired Corporations to: (a) provide Parent and Parent's ’s Representatives with reasonable access during normal business hours to the Acquired Corporations' Companies’ Representatives, personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (b) provide Parent and Parent's ’s Representatives with such copies of the such existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired Companies, as Parent may reasonably request. During ; provided, however, that no information discovered through the Pre-Closing Periodaccess afforded by this 4.1 shall be deemed to amend or supplement the Disclosure Schedule or prevent or cure any misrepresentations, the Company shall, and shall cause the Representatives breach of each warranty or breach of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating theretocovenant. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) , the Company shall promptly provide Parent with copies of: (Ai) upon the request of Parent, unaudited monthly consolidated balance sheets management accounts of the Acquired Corporations Companies and the related unaudited monthly consolidated statements of operations, and, if prepared, management accounts relating to the operations and statements of cash flows, together with all other material operating and financial reports prepared by the Company for the Company’s senior management; and (Bii) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations Companies in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated by the Agreement; and (iiiii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the Acquired Companies from any Governmental Body; and (iv) any non-privileged notice, document or other Contemplated Transactionscommunication sent by or on behalf of, or sent to, the Acquired Companies relating to any pending or threatened Legal Proceeding involving or affecting the Acquired Companies.
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Access and Investigation. During the period commencing on Between the date of this Agreement and ending as of the earlier of the Effective Time or the termination of Closing and such time as this Agreement (the "Pre-Closing Period")has been terminated pursuant to Article IX, and upon reasonable advance notice received from Buyer, the Company Premier Parties shall, and shall cause to the respective Representatives of the Acquired Corporations to: extent permitted by Legal Requirements, (a) provide Parent afford Buyer and Parent's Representatives with its agents and representatives (including the Debt Financing Sources) (the “Buyer Group”) reasonable access access, during normal regular business hours hours, to the Acquired Corporations' RepresentativesCompany’s (and, personnel to the extent related to the B&I GPO Business or the Contributed Assets, the other Premier Parties’) properties, personnel, facilities, contracts, books and assets and to all existing books, records, Tax Returns, work papers records and other documents and information relating data, such rights of access to be exercised in a manner that does not unreasonably interfere with the Acquired Corporations; and operations of the Premier Parties, (b) provide Parent furnish to the Buyer Group copies of all such contracts, books and Parent's Representatives records, and other existing documents and data that the Buyer Group may reasonably request with respect to the B&I GPO Business or the Contributed Assets, (c) furnish the Buyer Group with such copies of the existing booksadditional financial, records, Tax Returns, work papers operating and other documents relevant data and information relating as the Buyer Group may reasonably request with respect to the Acquired Corporations as Parent may B&I GPO Business or the Contributed Assets and (d) otherwise cooperate and assist, to the extent reasonably request. During requested by the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hoursBuyer Group, with the chief financial officer and other officers Buyer Group’s investigation of the Company responsible for properties, assets and financial condition of the Company's financial statements , the Contributed Assets and the internal controls B&I GPO Business. In addition, between the date of this Agreement and the earlier of the Acquired Corporations Closing and such time as this Agreement has been terminated pursuant to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under Article IX, the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and Buyer Group shall not, without the rules and regulations relating thereto. Without limiting the generality of any prior written consent of the foregoingEquityholder (which consent shall not be unreasonably withheld, during the Pre-Closing Period: (i) the Company shall promptly provide Parent conditioned or delayed), contact or have discussions with copies of: (A) upon the request of Parentany employees, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operationssuppliers, andMembers, if preparedChannel Partners, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report Sponsors or other document filed Persons having business relations with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or related to the Company's Representatives with copies of any material noticeB&I GPO Business, report to the extent related to the B&I GPO Business or the transactions contemplated hereby. All non-public or other document filed with or sent confidential information provided by the Premier Parties pursuant to any Governmental Body on behalf of Parent or Merger Sub this Article IV shall be kept confidential in connection accordance with the Merger or any of Confidentiality Agreement, entered into effective November 20, 2021, as amended to date, between Buyer and Equityholder (the other Contemplated Transactions“Confidentiality Agreement”).
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Access and Investigation. During the period commencing on from the date of this Agreement and ending as of the earlier of through the Effective Time or the termination of this Agreement (the "PrePRE-Closing PeriodCLOSING PERIOD"), the Company shall, and shall cause the respective Representatives of the Acquired Corporations to: (a) provide Parent and Parent's Representatives with reasonable access during normal business hours to the Acquired Corporations' Representatives, personnel Personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request. During the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) the , Company shall promptly provide Parent with copies of: :
(i) all material operating and financial reports prepared by the Acquired Corporations for Company's senior management, including (A) upon copies of the request of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of shareholders' equity and statements of cash flows; flows and (B) subject copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for Company's senior management;
(ii) any written materials or communications sent by or on behalf of Company to applicable Antitrust Lawsits shareholders;
(iii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any party to any Acquired Corporation Contract or sent to any of the Acquired Corporations by any party to any Acquired Corporation Contract (other than any communication that relates solely to routine commercial transactions between Company and the other party to any such Acquired Corporation Contract and that is of the type sent in the ordinary course of business and consistent with past practices);
(iv) any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Arrangement or any of the other Contemplated Transactionstransactions contemplated by this Agreement; and and
(iiv) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub in connection with the Merger or received by any of the other Contemplated TransactionsAcquired Corporations from any Governmental Body.
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Access and Investigation. During the period commencing on from the date of this Agreement and ending as of Date until the earlier of the Effective Time or and the termination of this Agreement pursuant to Section 9.1 (the "“Pre-Closing Period"”), upon reasonable advance notice to the Company, the Company and its directors, employees and officers shall, and the Company shall cause the respective direct its other Representatives of the Acquired Corporations to: (a) , provide Parent and Parent's ’s Representatives with reasonable access during normal business hours of the Company to the Acquired Corporations' RepresentativesCompany’s officers, personnel employees, other personnel, and assets and to all existing booksbooks and records (provided, recordshowever, Tax Returnsthat any such access shall be conducted at Parent’s sole expense, work papers at a reasonable time, under the supervision of appropriate personnel of the Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Company) and to furnish to Parent such financial and operating data and other documents and information relating to the Acquired Corporations; and (b) provide Parent and Parent's Representatives with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Company as Parent may reasonably requestrequest for a reasonable business purpose relating to the Transactions. During The foregoing notwithstanding, nothing herein shall require the PreCompany to disclose any information to Parent if such disclosure would (x) jeopardize any attorney-Closing Periodclient or other legal privilege or (y) contravene any applicable Law (including Antitrust Law) or fiduciary duty (so long as, in the case of each of clauses (x) and (y), the Company shallhas reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto or contravene any applicable Law). Information disclosed pursuant to this Section 6.1 shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent the Company reasonably determines doing so is reasonably required for the purpose of complying with applicable Antitrust Law. With respect to the information disclosed pursuant to this Section 6.1, Parent shall comply with, and shall cause the instruct Parent’s Representatives to comply with, all of each of the Acquired Corporations to, permit Parent's senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company's financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act Confidentiality Agreement, dated as of June 8, 2022, by and the rules and regulations relating thereto. Without limiting the generality of any of the foregoing, during the Pre-Closing Period: (i) between the Company and Parent (the “Non-Disclosure Agreement”). All requests for information made pursuant to this Section 6.1 shall promptly provide Parent with copies of: (A) upon the request be directed to an executive officer of Parent, unaudited monthly consolidated balance sheets of the Acquired Corporations and the related unaudited monthly consolidated statements of operations, and, if prepared, statements of cash flows; and (B) subject to applicable Antitrust Laws, any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions; and (ii) subject to applicable Antitrust Laws, Parent shall promptly provide the Company or other Person designated by the Company's Representatives with copies of any material notice, report or other document filed with or sent to any Governmental Body on behalf of Parent or Merger Sub Company in connection with the Merger or any of the other Contemplated Transactionswriting.
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