Access and Investigation. Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (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 to the Acquired Corporations’ Representatives, personnel, books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of: (i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004; (ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month; (iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors; (iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders); (v) 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract; (vi) 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; (vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions; (viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and (ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions).
Appears in 2 contracts
Sources: Merger Agreement (Nassda Corp), Merger Agreement (Synopsys Inc)
Access and Investigation. Subject to the Confidentiality Agreement, during During the period commencing on from the date of this Agreement and ending at through the earlier to occur of the Effective Time 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 Companies to: (ai) provide Parent and Parent’s Representatives with reasonable access during normal business hours upon reasonable advance notice to the Acquired Corporations’ respective Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers and other documents and information relating to assets of the Acquired Corporations; (b) provide Parent Companies and Parent’s Representatives with such copies of the to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompanies; and (ii) make available to 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 CorporationsCompanies, as Parent may reasonably request; (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, subject to applicable antitrust laws and regulations relating to the exchange of information, the Company shall promptly provide Parent with copies of:
: (iA) the Audited Year-End Financial Statements, which shall be provided all material operating and financial reports prepared by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by for the Company to Parent within ten days after the end Board, including (1) copies of such calendar month;
(iii) the unaudited quarterly monthly consolidated balance sheets of the Company as of the end of each fiscal quarter and its consolidated subsidiaries and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholdersshareholders’ equity and statements of cash flows and (2) copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
Board; (ivB) any written materials or communications sent by or on behalf of the Company to its stockholders shareholders; (in their capacity as stockholders);
(vC) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations Companies to any party to any Material Acquired Company Contract (other Excluded Contracts) or sent to any of the Acquired Corporations Companies by any party to any Material Acquired Company Contract containing (other than Excluded Contracts and any allegation communication that relates solely to commercial transactions between the Company and the other party to any such Acquired Company Contract and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the ordinary course of or under such Material Contract;
business and consistent with past practices); (viD) any notice, report or other document filed with or otherwise furnished, submitted delivered 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;
transactions contemplated by this Agreement; and (viiE) any material notice, report or other document received by any of the Acquired Corporations Companies from any Governmental Body other than any information with respect Body. Any review conducted pursuant to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any 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 and Companies or damage or destroy any insurance carrier material property or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any assets of the Acquired Corporations relating to any pending or threatened Legal Proceeding involving or affecting any of the Acquired Corporations (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Companies.
Appears in 2 contracts
Sources: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement (Ezchip Semiconductor LTD)
Access and Investigation. 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 at the Effective Time (the “Pre-Closing Period”)Time, the Company upon reasonable notice each party shall, and shall cause the respective Representatives of the Acquired Corporations such party’s directors, officers, employees, accountants, consultants, legal counsel, investment bankers, advisors, agents and other representatives (collectively, “Representatives”) to: (a) provide Parent the other party and Parentsuch other party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such party and its Subsidiaries; (b) provide the Acquired Corporationsother party and such other party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such party and its Subsidiaries as the Acquired Corporations, as Parent other party may reasonably request; and (c) permit Parentthe other party’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 such party responsible for the Companysuch party’s financial statements and the internal controls of the Acquired Corporations such party to discuss such matters as Parent the other party may reasonably deem necessary or appropriate in order to enable Parent the other party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Periodperiod commencing on the date of this Agreement and ending at the Effective Time, the Company each party shall promptly provide Parent the other party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such party for its senior management, including development plans, hiring reports and capital expenditure reports prepared for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company a party to its stockholders (in their capacity as stockholders);
(viv) with respect to the Company, any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations Company to any party to any Company Material Contract or sent to any of the Acquired Corporations Company by any party to any Company Material Contract containing (other than any allegation communication that relates solely to routine commercial transactions between the Company and the other party to any such Company Material Contract and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the ordinary course of or under such Material Contractbusiness and consistent with past practices);
(viv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Entity on behalf of a party or any of the Acquired Corporations its Subsidaries in connection with the Merger or any of the other Contemplated TransactionsMerger;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a party relating to any pending or threatened Legal Proceeding involving or affecting such party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a party from any Governmental Entity. Notwithstanding the foregoing, any party may restrict the foregoing access to the extent that any legal requirement applicable to such party reasonably requires such party or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 2 contracts
Sources: Merger Agreement (Fermavir Pharmaceuticals, Inc.), Merger Agreement (Inhibitex, Inc.)
Access and Investigation. Subject to the terms of the Confidentiality Agreement which the Parties agree will continue in full force and effect following the date of this Agreement, during the period commencing on the date of this Agreement and ending at the earlier of the date of termination of this Agreement pursuant to Section 7.1 and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, personnel and assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; such Party and its Subsidiaries, (b) provide Parent the other Party and Parentsuch other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers papers, product data, and other documents and information relating to the Acquired Corporationssuch Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; , and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal calendar quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar quarterly, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen forty-five (45) days after the end of such fiscal quarter and calendar quarter, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operations and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Parent Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Parent Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Parent Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(viv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other written communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened material Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (material notice, material report or other material document received by a Party from any Governmental Authority, other than in the Ordinary Course of Business. Notwithstanding the foregoing, any noticeParty may restrict the foregoing access (A) to the extent that any Law applicable to such party requires such Party to restrict or prohibit access to any such properties or information or as may be necessary to preserve the attorney-client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access, document or other communication sent by (B) to the extent that such Party reasonably believes that allowing such access or on behalf furnishing such information would otherwise result in the disclosure of any trade secrets of third parties or violate any obligations existing on the Acquired Corporations date hereof with respect to Parent, or sent confidentiality to any of third party or otherwise breach, contravene or violate any effective Contract existing on the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)date hereof.
Appears in 2 contracts
Sources: Merger Agreement (Emmaus Life Sciences, Inc.), Merger Agreement (MYnd Analytics, Inc.)
Access and Investigation. Subject to the terms of the Confidentiality Agreement, which will continue in full force following the date of this Agreement in accordance with its terms, during the period commencing on the date of this Agreement and ending at the Effective Time Closing (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries that such other party may reasonably request in connection with this Agreement and the Acquired Corporationsconsummation of the Transactions; (b) provide the other Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably requestrequest in connection with this Agreement and the consummation of the Transactions; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such Party for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Xcyte Material Contract or Cyclacel Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Xcyte Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Cyclacel Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Xcyte Material Contract or Cyclacel Material Contract, as applicable, and that is of the type sent in the ordinary course of business and consistent with past practices);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any law, treaty, rule or on behalf regulation of any of the Acquired Corporations Governmental Body applicable to Parent, such party requires such Party or sent its Subsidiaries to restrict or prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 2 contracts
Sources: Stock Purchase Agreement, Stock Purchase Agreement (Xcyte Therapies Inc)
Access and Investigation. Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (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 to the Acquired Corporations’ Representatives, personnel, books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; and (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statementsquarterly financial statements for the three and six month periods ending September 30, which 2005 shall be provided by the Company to Parent as soon as they become available, but and in any event no event later than December 15November 1, 20042005, and as reviewed by the Company’s independent registered public accounting firm no later than November 10, 2005;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly monthly consolidated balance sheets of the Company Acquired Corporations as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to calendar month;
(iii) the Company’s board of directors in connection with such quarterly financial informationmonthly booking forecast updates for the upcoming calendar month, which shall be delivered by the Company to Parent within one three business day after being provided to days before the Company’s board beginning of directorssuch calendar month;
(iv) any written materials or other written communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) any material notice, document or other written 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court ActionsBody;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and;
(ix) 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 (other than or any notice, document director or other communication sent by or on behalf officer of any of the Acquired Corporations to Parent, or sent to any Corporations; and
(x) at least 48 hours in advance of the Acquired Corporations by Parent, in connection filing of any periodic or current report or schedule or proxy statement with the State Court Action SEC, such periodic or the Federal Court Actions)current report or schedule or proxy statement.
Appears in 1 contract
Sources: Merger Agreement (Synopsys Inc)
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Saffron Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Saffron Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Saffron Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(viv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Authority. Notwithstanding the foregoing, any Party may restrict the foregoing access (A) to the extent that any Law applicable to such party requires such Party to restrict or on behalf prohibit access to any such properties or information or as may be necessary to preserve the attorney-client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access or (B) to the extent that such Party reasonably believes that allowing such access or furnishing such information would otherwise result in the disclosure of any trade secrets of third parties or violate any obligations existing on the Acquired Corporations date hereof with respect to Parent, or sent confidentiality to any of third party or otherwise breach, contravene or violate any effective Contract existing on the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)date hereof.
Appears in 1 contract
Access and Investigation. 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 at the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen twenty days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Axonyx Material Contract or TorreyPines Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Axonyx Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such TorreyPines Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Axonyx Material Contract or TorreyPines Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party, and, with regard to any Legal Proceeding set forth on Part 3.17 of the Acquired Corporations (Axonyx Disclosure Schedule or Part 2.17 of the TorreyPines Disclosure Schedule, Axonyx or TorreyPines, as applicable, shall provide the other than any notice, document or other communication sent Party and its counsel in advance filings to be made by or on behalf of Axonyx or TorreyPines, as applicable, with regard to such Legal Proceeding and the other Party the opportunity to comment on such filings and shall provide the other Party all information and correspondence with any of the Acquired Corporations to Parent, broker or sent to any of the Acquired Corporations by Parent, insurer in connection with any insurance policy or policies applicable to such Legal Proceeding; and
(vii) any material notice, report or other document received by a Party from any Governmental Body. Notwithstanding the State Court Action foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such party requires such Party or the Federal Court Actions)its Subsidiaries to restrict or prohibit access to any such properties or information.
Appears in 1 contract
Sources: Merger Agreement (Axonyx Inc)
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorsParties may agree to;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Parent Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Parent Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Parent Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Authority. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Law applicable to such party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such properties or information or as may be necessary to preserve the Acquired Corporations attorney-client privilege under any circumstances in which such privilege may be jeopardized by Parent, in connection with the State Court Action such disclosure or the Federal Court Actions)access.
Appears in 1 contract
Sources: Merger Agreement (Telik Inc)
Access and Investigation. Subject to the Confidentiality Agreement, during During the period commencing on from the date of this Agreement and ending at through the Effective Time (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 to the Acquired Corporations’ Representatives, personnel, assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; and (b) provide promptly furnish 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, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; (c) . During the Pre-Closing Period, the Company shall permit Parent’s senior officers and other employees to meet, upon reasonable notice and during normal business hours, with the chief financial officer, the interim chief financial officer and other officers and managers 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 reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the all other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar applicable Legal Proceeding, including association in matters of strategy and tacticsRequirements. Without limiting the generality of any of the foregoing, but subject to the Confidentiality Agreementapplicable United States and foreign antitrust and competition laws, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided all material operating and financial reports prepared by the Company to Parent as soon as they become availableAcquired Corporations for the Company’s senior management, but in no event later than December 15, 2004;
including: (iiA) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end copies of such calendar month;
(iii) the unaudited quarterly monthly consolidated balance sheets of the Company as of the end of each fiscal quarter Acquired Corporations and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarterflows; and (B) copies of any sales forecasts, as well as a quarterly revenue forecastmarketing plans, all development plans, discount reports, write-off reports, hiring reports, capital expenditure reports or reports relating to information set forth in Part 2.7(c) of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to Disclosure Schedule prepared for the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;senior management; and
(ivii) any written materials or communications sent by or on behalf of the Company to its stockholders (not otherwise publicly available. Notwithstanding the foregoing, any such access, investigation or consultation shall be conducted in their capacity such a manner as stockholders);
(v) not to interfere unreasonably with the business or operations of the Acquired Corporations or otherwise interfere unreasonably with the normal operation of the Acquired Corporations. All requests for information made pursuant to this Section 4.1 shall be directed to the executive officers or any material noticeother Person designated by the Company. None of the Acquired Corporations shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the rights of its clients, document or other communication sent by or on behalf waive the attorney-client privilege of any of the Acquired Corporations or contravene any Legal Requirement or binding agreement entered into prior to the date of this Agreement or provide access to or otherwise make available any party information relating to any Material Contract or sent the process conducted by the Company that led to any the execution of this Agreement. The parties hereto will use commercially reasonable efforts to make appropriate substitute arrangements under circumstances in which the restrictions of the Acquired Corporations by any party to any Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with preceding sentence apply. With respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct the applicable Representatives of Parent to comply with, all of its confidentiality obligations under the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (XOOM Corp)
Access and Investigation. Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (Time, ( 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 to the Acquired Corporations’ Representatives, personnel, personnel and assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (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, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; and (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company Acquired Corporations as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen business days after the end of such fiscal quarter calendar month, commencing with a delivery on December 21, 2005;
(ii) an updated cash budget and such other related materials as are provided cash forecast (in the format set forth in Annex 2.4(g) to the Company’s board of directors in connection with such quarterly financial informationDisclosure Letter), which shall be delivered by the Company to Parent within one on the fifteenth business day after being provided of each calendar month;
(iii) subject to the limitations in the Confidentiality Agreement, all material operating and financial reports prepared by the Acquired Corporations for the Company’s board of directorssenior management, including 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;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) 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 containing (other than any allegation of communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any actual, possible, potential or threatened breach, violation or default of or under such Material ContractContract and that is of the type sent in the ordinary course of business and consistent with past practices);
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court ActionsBody;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Corporations.
Appears in 1 contract
Sources: Merger Agreement (GoRemote Internet Communications, Inc.)
Access and Investigation. Subject to the terms of the Confidentiality Agreement which the Parties agree will continue in full force and effect following the date of this Agreement, during the period commencing on the date of this Agreement and ending at the earlier of the date of termination of this Agreement pursuant to Section 7.1 and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries, (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; , and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal calendar quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar quarterly, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen forty-five (45) days after the end of such fiscal quarter and calendar quarter, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Parent Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Parent Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Parent Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(viv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other written communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened material Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (material notice, material report or other material document received by a Party from any Governmental Authority, including regarding any permit, other than in the Ordinary Course of Business. Notwithstanding the foregoing, any noticeParty may restrict the foregoing access (A) to the extent that any Law applicable to such party requires such Party to restrict or prohibit access to any such properties or information or as may be necessary to preserve the attorney-client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access, document or other communication sent by (B) to the extent that such Party reasonably believes that allowing such access or on behalf furnishing such information would otherwise result in the disclosure of any trade secrets of third parties or violate any obligations existing on the Acquired Corporations date hereof with respect to Parent, or sent confidentiality to any of third party or otherwise breach, contravene or violate any effective Contract existing on the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)date hereof.
Appears in 1 contract
Sources: Merger Agreement (Skinvisible Inc)
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by unaudited monthly consolidated balance sheets of such Party as of the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a end of each calendar month and the related unaudited monthly booking forecast, expenditures report consolidated statements of operations and cash balances reportstatements of stockholders’ equity for such calendar month, which shall be delivered by the Company to Parent within ten thirty (30) calendar days after the end of such calendar month, or such longer periods as the Parties may agree to in writing;
(ii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Vital Material Contract or Immunic Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Vital Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Immunic Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Vital Material Contract or Immunic Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) 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 a Party in connection with the Merger Transaction or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the Acquired Corporations by Parent, protection of attorney-client privilege (it being agreed that the Parties shall use their commercially reasonable efforts to cause such access or information to be provided in connection with the State Court Action a manner that would not result in such jeopardy or the Federal Court Actionscontravention).
Appears in 1 contract
Access and Investigation. 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 at the earlier of the termination of this Agreement pursuant to its terms or the Effective Time (the “"Pre-Closing Period”"), the Company upon reasonable notice NitroMed shall, and shall cause the respective NitroMed's Representatives of the Acquired Corporations to: (a) provide Parent Deerfield and Parent’s Deerfield's Representatives with reasonable access during normal business hours to the Acquired Corporations’ NitroMed's Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to NitroMed and its Subsidiaries and (b) provide Deerfield and Deerfield's Representatives with such copies of the Acquired Corporationsexisting books, records, Tax Returns, work papers, product data, and other documents and information relating to NitroMed and its Subsidiaries, and with such additional financial, operating and other data and information regarding the Acquired Corporations, NitroMed and its Subsidiaries as Parent Deerfield may reasonably request; (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company NitroMed shall promptly provide Parent Deerfield with copies of:
(i) the Audited Year-End Financial Statementsunaudited monthly consolidated balance sheets of NitroMed as of the end of each calendar month and the related unaudited monthly consolidated statements of operations, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report statements of stockholders' equity and statements of cash balances reportflows for such calendar month, which shall be delivered by the Company to Parent within ten thirty (30) days after the end of such calendar month;
(iiiii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter all material operating and the related unaudited quarterly consolidated statements of operationsfinancial reports prepared by NitroMed for its senior management, statements of stockholders’ equity including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and statements of cash flows capital expenditure reports prepared for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorsits senior management;
(iviii) any written materials or communications sent by or on behalf of the Company NitroMed to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations NitroMed to any party to any Material material NitroMed Contract or sent to any of the Acquired Corporations NitroMed by any party to any Material material NitroMed Contract containing (other than any allegation communication that relates solely to routine commercial transactions between NitroMed and the other party to any such material NitroMed Contract and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the Ordinary Course of or under such Material ContractBusiness);
(viv) 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 NitroMed in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations NitroMed relating to any pending or threatened Legal Proceeding involving or affecting NitroMed; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by NitroMed from any Governmental Body. Notwithstanding the foregoing, NitroMed may restrict the foregoing access to the extent that any Legal Requirement applicable to NitroMed requires NitroMed or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Sources: Merger Agreement (Nitromed Inc)
Access and Investigation. 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 at the earlier of the termination of this Agreement pursuant to its terms or the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice NitroMed and Archemix shall, and shall cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each of NitroMed and Archemix shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and capital expenditure reports prepared for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Material material NitroMed Contract or material Archemix Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Material material NitroMed Contract containing or material Archemix Contract, as applicable (other than any allegation communication that relates solely to routine commercial transactions between such Party and the other party to any such material NitroMed Contract or material Archemix Contract, as applicable, and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the Ordinary Course of or under such Material ContractBusiness);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Sources: Merger Agreement (Nitromed Inc)
Access and Investigation. 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 at the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (ax) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries, if any; (y) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, if any, and with such additional financial, operating and other data and information regarding the Acquired Corporationssuch Party and its Subsidiaries, if any, as Parent the other Party may reasonably request; and (cz) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(ia) the Audited Year-End Financial Statementsunaudited monthly consolidated balance sheets of such Party as of the end of each calendar month and the related unaudited monthly consolidated statements of operations, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report statements of stockholders’ equity and statements of cash balances reportflows for such calendar month, which shall be delivered by the Company to Parent within ten twenty days after the end of such calendar month, or such longer periods as the Parties may agree to in writing;
(iiib) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal calendar quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal calendar quarter, as well as a quarterly revenue forecastreviewed by such Party’s independent auditor, all of which shall be delivered by the Company to Parent within fifteen forty days after the end of such fiscal quarter and calendar quarter, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vic) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixd) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(e) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party, as applicable, shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of shareholders/stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 30 calendar days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as shareholders/stockholders);
(viii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Opexa Material Contract or Acer Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Opexa Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Acer Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Opexa Material Contract or Acer Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viiv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixv) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vi) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the Acquired Corporations by Parent, protection of attorney-client privilege (it being agreed that the Parties shall use their reasonable best efforts to cause such access or information to be provided in connection with the State Court Action a manner that would not result in such jeopardy or the Federal Court Actionscontravention).
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality AgreementAgreement and Gaming Laws, during the period commencing on the date of this Agreement and ending at the Effective Time of Merger I (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 to the Acquired Corporations’ ' Representatives, personnel, personnel and assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (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, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; and (c) permit Parent’s '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 reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the Sarbanes-Oxley Act and the rules and regulations relating thereto. W▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting g the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iiiI) the unaudited quarterly monthly consolidated balance sheets of the Company Acquired Corporations as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ ' equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivII) 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;
(III) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(vIV) 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 containing (other than any allegation of communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any actual, possible, potential or threatened breach, violation or default of or under such Material ContractContract and that is of the type sent in the ordinary course of business and consistent with past practices);
(viV) 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 Transaction or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixVI) 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 Corporations; and
(other than VII) any material notice, document report or other communication sent document received by or on behalf of any of the Acquired Corporations to Parent, or sent to from any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Governmental Body.
Appears in 1 contract
Sources: Merger Agreement (Virtgame Com Corp)
Access and Investigation. Subject to the terms of the Confidentiality Agreement, which the Company and CGI agree will continue in full force following the date of this Agreement, during the period commencing on the date of this Agreement and ending at the earlier of the termination of this Agreement pursuant to Article IX and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Parties and Parent’s such other Parties’ Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party; (b) provide the Acquired Corporationsother Parties and such other Parties’ Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party, and with such additional financial, operating and other data and information regarding such Party as the Acquired Corporations, as Parent other Parties may reasonably request; and (c) permit Parent’s the other Parties’ 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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsappropriate. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company and CGI shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by unaudited monthly balance sheets of such Party as of the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a end of each calendar month and the related unaudited monthly booking forecast, expenditures report statements of operations and statements of cash balances reportflows for such calendar month, which shall be delivered by the Company to Parent within ten 20 days after the end of such calendar month, or such longer periods as the Parties may agree to in writing;
(ii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company such Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations such Party to any party to any CGI Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations such Party by any party to any CGI Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such CGI Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(viv) any material 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 such Party in connection with the Merger or any of the other Contemplated Transactions;
(viivi) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations such Party relating to any pending or threatened Legal Proceeding involving or affecting such Party;
(vii) with respect to the Company, the documents and other items listed in Section 2.13(e); and
(viii) any material notice, report or other document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or prohibit access to any such properties or information or as may be necessary to preserve the attorney-client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access. Any investigation conducted by a Party pursuant to this Section 4.1 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Acquired Corporations (other than any notice, document or other communication sent by or on behalf of any business of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)other Party.
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality AgreementSection 6.1, during the period commencing on the date of this Agreement and ending at the earlier of the termination of this Agreement pursuant to Article VIII and the Effective Time (the “Pre-Closing Period”), upon reasonable notice the Company Company, on the one hand, and Parent, on the other hand, shall, and shall use commercially reasonable efforts to cause the respective such party’s Representatives of the Acquired Corporations to: (a) provide Parent the other party and Parentsuch other party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such party and its Subsidiaries as may be reasonably requested by the Acquired Corporationsother party; (b) provide the other party and such other party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such party and its Subsidiaries as the Acquired Corporations, as Parent other party may reasonably request; and (c) permit Parentthe other party’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 such party responsible for the Companysuch party’s financial statements and the internal controls of the Acquired Corporations such party to discuss such matters as Parent the other party may reasonably deem necessary or appropriate in order to enable Parent the other party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of Notwithstanding the foregoing, subject any party may restrict the foregoing access to the Confidentiality Agreement, during extent that any Law applicable to such party requires such party to restrict or prohibit access to any such properties or information or as may be necessary to preserve the Preattorney-Closing Period, the Company client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access; provided that such party shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company use its reasonable best efforts to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows allow for such fiscal quarter, as well as access or disclosure in a quarterly revenue forecast, all manner that does not result in a violation of which shall be delivered by the Company to Parent within fifteen days after the end Law or loss of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)attorney client privilege.
Appears in 1 contract
Access and Investigation. Subject to the terms of the Confidentiality Agreement, during which the period commencing on Parties agree will continue in full force following the date of this Agreement and ending at Agreement, during the Effective Time (the “Pre-Closing Period”), upon not less than three (3) Business Days’ notice, Parent, on the Company shallone hand, and the Company, on the other hand, shall and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating property (taking into account any restricted access to such property due to the Acquired Corporations; coronavirus (bCOVID-19) provide Parent pandemic) and Parent’s Representatives with such copies of the assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its TABLE OF CONTENTS Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; (c) permit Parentthe other Party’s officers and other employees to meethold discussions, upon reasonable notice and during normal business hours, with the chief financial officer and other officers and managers of the Company such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactionsand; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject make available to the Confidentiality Agreementother Party copies of unaudited financial statements, during material operating and financial reports prepared for senior management or the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with of such quarterly financial informationParty, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) and 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) any notice, report or other document filed with or otherwise furnished, submitted or sent to or received from any Governmental Body on behalf of any of the Acquired Corporations in connection with the Merger Contemplated Transactions. Any investigation conducted by either Parent or any the Company pursuant to this Section 4.3 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the other Contemplated Transactions;
(vii) any material noticeParty. Each Party shall provide the other Party with unaudited cash balances promptly after such cash balances are available to such Party, report or other document received by any and with a statement of accounts payable of such Party as of the Acquired Corporations from any Governmental Body other than any information with respect end of each calendar month, promptly after such Party prepares such a statement, all to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of extent prepared by and available to such Party. Notwithstanding the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf of, or sent toforegoing, any of Party may restrict the Acquired Corporations relating foregoing access to the extent that any Law applicable to such Party requires such Party to restrict or prohibit access to any pending such properties or threatened Legal Proceeding involving information or affecting as may be necessary to preserve the attorney-client privilege under any of the Acquired Corporations (other than any notice, document circumstances in which such privilege may be jeopardized by such disclosure or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)access.
Appears in 1 contract
Access and Investigation. 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 at the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇Sarba▇▇▇-▇▇▇▇▇ Act ▇▇▇ and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen twenty days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Tigris Material Contract or Potomac Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Tigris Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Potomac Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Tigris Material Contract or Potomac Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Access and Investigation. 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 at the earlier of the termination of this Agreement pursuant to Section 9.1 or the Effective Time (the “Pre-Closing Period”), upon reasonable notice Replidyne and the Company shall, and shall cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, each of Replidyne and the Company shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 20 days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and capital expenditure reports prepared for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Material material Replidyne Contract or material Company Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Material material Replidyne Contract containing or material Company Contract, as applicable (other than any allegation communication that relates solely to routine commercial transactions between such Party and the other party to any such material Replidyne Contract or material Company Contract, as applicable, and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the Ordinary Course of or under such Material ContractBusiness);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Sources: Merger Agreement (Replidyne Inc)
Access and Investigation. Subject to the Confidentiality Agreement, during During the period commencing on the date of this Agreement and ending at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’s officers and other employees to meet, upon reasonable notice and during normal business hours, with the chief financial officer and or other officers and managers of the Company such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsreasonably appropriate. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 30 calendar days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any GC Material Contract or Bombshell Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any GC Material Contract containing any allegation of any actualor Bombshell Material Contract in connection the Contemplated Transactions, possible, potential or threatened breach, violation or default of or under such Material Contractas applicable;
(viv) 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 a Party in connection with the Merger Exchange or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that such Party reasonably believes any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such Party reasonably believes access or disclosure would jeopardize the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)protection of attorney-client privilege.
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (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 to the Acquired Corporations’ ' Representatives, personnel, books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s 's Representatives with such copies of the books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; and (c) permit Parent’s '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 reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the Sarbanes-Oxley Act and the rule▇ ▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations ons relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statementsquarterly financial statements for the three and six month periods ending September 30, which 2005 shall be provided by the Company to Parent as soon as they become available, but and in any event no event later than December 15November 1, 20042005, and as reviewed by the Company's independent registered public accounting firm no later than November 10, 2005;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly monthly consolidated balance sheets of the Company Acquired Corporations as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ ' equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to calendar month;
(iii) the Company’s board of directors in connection with such quarterly financial informationmonthly booking forecast updates for the upcoming calendar month, which shall be delivered by the Company to Parent within one three business day after being provided to days before the Company’s board beginning of directorssuch calendar month;
(iv) any written materials or other written communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) any material notice, document or other written 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court ActionsBody;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and;
(ix) 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 (other than or any notice, document director or other communication sent by or on behalf officer of any of the Acquired Corporations to Parent, or sent to any Corporations; and
(x) at least 48 hours in advance of the Acquired Corporations by Parent, in connection filing of any periodic or current report or schedule or proxy statement with the State Court Action SEC, such periodic or the Federal Court Actions)current report or schedule or proxy statement.
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality Agreement, during (a) During the period commencing on from the date of this Agreement and ending at 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 its Subsidiaries and their respective Representatives of to (to the Acquired Corporations to: extent permitted under applicable Legal Requirements): (ax) provide Parent and Parent’s Representatives with reasonable access during normal business hours upon reasonable notice and in a manner as shall not unreasonably interfere with the business or operations of the Company or any of its Subsidiaries to the Acquired Corporations’ Representatives, personnel, personnel and assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations (subject to the Acquired Corporations’ reasonable security measures); and (by) 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, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; (c) . 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 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 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 or otherwise in connection with thereto. All information exchanged pursuant to this Section 4.1 shall be subject to the Merger or any provisions of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsConfidentiality Agreement. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent (upon its reasonable request and to the extent permitted under applicable Legal Requirements) with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided all material operating and financial reports prepared by the Company to Parent as soon as they become availableAcquired Corporations for the Company’s senior management, but in no event later than December 15, 2004;
including: (iiA) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end copies of such calendar month;
(iii) the unaudited quarterly monthly consolidated balance sheets of the Company as of the end of each fiscal quarter Acquired Corporations and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows flows; and (B) copies of any sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorssenior management;
(ivii) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(viii) 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 containing (other than any allegation of communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any actual, possible, potential or threatened breach, violation or default of or under such Material ContractContract and that is of the type sent in the ordinary course of business and consistent with past practices);
(viiv) 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;; and
(viiv) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect Body.
(b) During the Pre-Closing Period, the Company covenants and agrees that Parent may retain environmental consultants and attorneys to conduct an environmental assessment of the real properties, assets, equipment and facilities owned or used by the Acquired Corporations (subject to the State Court Action Acquired Corporations’ reasonable security measures). Such environmental assessment may consist of any activities deemed by Parent or Federal Court Actions;its consultants to be reasonably necessary, including physical inspections of the real properties, assets, equipment and facilities, review of all relevant and available material records in the possession or under the control of the Acquired Corporations, review of relevant material Governmental Body records and contact with Governmental Body personnel, conduct of sampling activities and any other reasonable investigatory activities. The Company shall, and shall cause its Subsidiaries to, provide Parent’s environmental consultants and attorneys reasonable access during normal business hours to all real properties, assets, equipment and facilities owned or used by the Acquired Corporations, upon reasonable notice and in a manner as shall not unreasonably interfere with the business or operations of the Acquired Corporations, for purposes of conducting the environmental assessment.
(viiic) any material correspondence between any During the Pre-Closing Period, the Company covenants and agree that Parent may itself or through consultants, attorneys, or other experts retained by Parent, conduct reviews, assessments, evaluations and inquiries regarding the compliance of the Acquired Corporations with applicable Legal Requirements, including the Anti-Corruption Laws, Legal Requirements pertaining to export and any insurance carrier import control, Government Contracts, privacy and personal information, Environmental Laws, including those pertaining to Conflict Minerals, product content and take-back, health and safety laws (subject to the Acquired Corporations’ reasonable security measures). The Company agrees to provide to Parent, its consultants, attorneys and experts, reasonable cooperation and access during normal business hours to Company employees, records and information in the possession or insurance broker; and
(ix) any non-privileged noticeunder the control of the Company, document reasonably requested by Parent in connection with these reviews, assessments, evaluations and inquiries and in a manner as shall not unreasonably interfere with the business or other communication sent by or on behalf of, or sent to, any operations of the Acquired Corporations relating to any pending or threatened Legal Proceeding involving or affecting any of the Acquired Corporations (other than any notice, document or other communication sent by or on behalf of any of Corporations. Nothing in this Section 4.1 shall require the Acquired Corporations to Parentdisclose any information to the extent such disclosure would contravene any applicable Legal Requirements or would cause the waiver of any legal privilege, provided, that the parties will cooperate and use commercially reasonable efforts to find a way to allow diligence of such information in a manner that would not contravene any applicable Legal Requirements or sent to any cause such waiver of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)a legal privilege.
Appears in 1 contract
Sources: Merger Agreement (Silicon Graphics International Corp)
Access and Investigation. 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 at on the earlier to occur of the termination of this Agreement pursuant to Article 9 and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen twenty (20) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Lpath Material Contract or Buyer Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Lpath Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Buyer Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Lpath Material Contract or Buyer Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viiv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixv) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vi) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such Party’s properties or the Federal Court Actions)information.
Appears in 1 contract
Sources: Merger Agreement (Lpath, Inc)
Access and Investigation. 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 at the earlier of the termination of this Agreement pursuant to Article IX and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholdersshareholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 20 days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Castle Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Castle Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Castle Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(viivi) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such properties or information or as may be necessary to preserve the Acquired Corporations attorney-client privilege under any circumstances in which such privilege may be jeopardized by Parent, in connection with the State Court Action such disclosure or the Federal Court Actions)access.
Appears in 1 contract
Sources: Merger Agreement (Cempra, Inc.)
Access and Investigation. Subject to the Confidentiality Agreement, during the period commencing on Between the date of this Agreement and ending at the Effective Time (the “Pre-Closing Period”)Date, the Company shallSeller will, and shall will cause the respective its Representatives of the Acquired Corporations to: , (a) provide Parent afford the Purchaser and Parent’s its Representatives with reasonable (collectively, "Purchaser's Advisors") full and free access to the Acquired Corporations’ RepresentativesAssets, personnelthe Assumed Liabilities, booksthe Business, the payroll information (but only at such times reasonably agreeable to the Parties), properties (including for purposes of subsurface and other environmental testing), contracts, books and records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to data of the Acquired Corporations; Business, (b) provide Parent and Parent’s Representatives furnish Purchaser's Advisors with such copies of the booksall such contracts, books and records, Tax Returns, work papers and other existing documents and information relating to the Acquired Corporationsdata as Purchaser's Advisors may reasonably request, and (c) furnish Purchaser's Advisors with such additional financial, operating payroll, operating, and other data and information regarding the Acquired Corporations, as Parent Purchaser's Advisors may reasonably request. Notwithstanding the foregoing, Seller may refuse to provide information that relates to pricing of products or identity of customers to the extent it shall reasonably determine such information to be inappropriate to disclose. In case at any time after the Closing any further action is necessary to carry out the purposes of this Agreement, the Parties will take such further action (including the execution and delivery of such further instruments and documents) as any other Party reasonably may request, at the sole cost and expense of the requesting Party (unless the requesting Party is entitled to indemnification therefor hereunder). The Seller acknowledges and agrees that from and after the Closing the Purchaser will have the right to possession of all documents, books, records (including non-income Tax records), agreements, and financial data of any sort relating to the Acquired Assets, the Assumed Liabilities, and the Business (other than Excluded Assets, and materials constituting attorney-client privilege materials or materials subject to privacy obligations not waivable by the Seller); provided, however, that the Seller shall have the right to obtain access to such documents, books, records (including Tax records), agreements, and financial data to the extent related to the period prior to the Closing and make photocopies thereof for a proper purpose, such as in connection with the preparation of their Tax Returns. Between the date of this Agreement and the Closing Date, the Seller will: (a) operate the Business (or otherwise conduct the Business) only in the Ordinary Course of Business; (b) use its Best Efforts to preserve intact the current business organization, keep available the services of the current employees and agents, and maintain the relations and good will with suppliers, landlords, creditors, employees, agents, and others having business relationships with the Business; (c) permit Parent’s officers and other employees to meet, upon reasonable notice and during normal business hours, confer with the chief financial officer and other officers and managers Purchaser concerning operational matters of the Company responsible for the Company’s financial statements and the internal controls Business of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactionsa material nature; and (d) permit legal counsel selected by Parent, in its sole discretion, otherwise report periodically to associate in the defense Purchaser concerning the status of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing PeriodBusiness, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial StatementsAcquired Assets, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Assumed Liabilities.
Appears in 1 contract
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: to (ax) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (y) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (cz) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iiia) the unaudited quarterly monthly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of shareholders’ or stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivb) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(c) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as shareholders or stockholders);
(vd) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any FSI Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any FSI Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such FSI Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(vie) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixf) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(g) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Authority. Notwithstanding the foregoing, any Party may restrict the foregoing access (A) to the extent that any Law applicable to such party requires such Party to restrict or on behalf prohibit access to any such properties or information or as may be necessary to preserve the attorney-client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access or (B) to the extent that such Party reasonably believes that allowing such access or furnishing such information would otherwise result in the disclosure of any trade secrets of third parties or violate any obligations existing on the Acquired Corporations date hereof with respect to Parent, or sent confidentiality to any of third party or otherwise breach, contravene or violate any effective Contract existing on the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)date hereof.
Appears in 1 contract
Sources: Merger Agreement (Flexible Solutions International Inc)
Access and Investigation. Subject to the terms of the Confidentiality Agreement which the parties hereto agree will continue in full force following the date of this Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each party hereto shall, and shall use commercially reasonable efforts to cause the respective such party’s Representatives of the Acquired Corporations to: (a) provide Parent the other party and Parentsuch other party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such party and its Subsidiaries; (b) provide the Acquired Corporationsother party and such other party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such party and its Subsidiaries as the Acquired Corporations, as Parent other party may reasonably request; and (c) permit Parentthe other party’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 such party responsible for the Companysuch party’s financial statements and the internal controls of the Acquired Corporations such party to discuss such matters as Parent the other party may reasonably deem necessary or appropriate in order to enable Parent the other party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each party shall promptly provide Parent with make available to the other party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iiia) the unaudited quarterly monthly consolidated balance sheets of the Company such party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen twenty days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivb) all material operating and financial reports prepared by such party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(c) any written materials or communications sent by or on behalf of the Company a party to its stockholders (in their capacity as stockholders);
(vd) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a party to any party to any Parent Material Contract Agreement or Company Material Agreement, as applicable, or sent to any of the Acquired Corporations a party by any party to any Parent Material Contract containing Agreement or Company Material Agreement, as applicable (other than any allegation communication that relates solely to routine commercial transactions between such party and the other party to any such Parent Material Agreement or Company Material Agreement, as applicable, and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the ordinary course of or under such Material Contractbusiness and consistent with past practices);
(vie) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Entity on behalf of any of the Acquired Corporations a party in connection with the Merger or any of the other Contemplated Transactionstransactions contemplated hereunder;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixf) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a party relating to any pending or threatened Legal Proceeding Action involving or affecting such party as a defendant; and
(g) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a party from any Governmental Entity. Notwithstanding the foregoing, any party hereto may restrict the foregoing access to the extent that any Law applicable to such party requires such party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality Agreementterms of this Agreement regarding confidentiality, during the period commencing on the date of this Agreement and ending at the Effective Time Closing (the “Pre-Closing "Interim Period”)") or until this Agreement is terminated pursuant to Section 11, upon reasonable notice to the Major Shareholders representative, Michael Porter, the Company shallMajor Sha▇▇▇▇▇▇▇▇▇ ▇▇▇▇l, and shall cause the respective such Sellers' 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’ such Buyer's Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsEUE Companies that Buyer may reasonably request in connection with this Agreement and the consummation of the Transactions;
(b) provide Buyer and Buyer's Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to the EUE Companies, and with such additional financial, operating and other data and information regarding the Acquired Corporations, EUE Companies as Parent Buyer may reasonably requestrequest in connection with this Agreement and the consummation of the Transactions; and
(c) permit Parent’s Buyer'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 EUE Companies responsible for the Parent Company’s 's consolidated financial statements and the internal controls of the Acquired Corporations Parent Company to discuss such matters as Parent Buyer may reasonably deem necessary or appropriate in order to enable Parent Buyer to satisfy its obligations under the Sarbanes-Oxley Act and the r▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations ations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing PeriodInterim Period or until this Agreement is terminated pursuant to Section 11, Major Shareholders shall cause the Parent Company shall to promptly provide Parent Buyer with copies of:
(ia) the Audited Year-End Financial Statementsunaudited monthly consolidated balance sheets of each EUE Company as of the end of each calendar month and the related unaudited monthly consolidated statements of operations, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report statements of stockholders' equity and statements of cash balances reportflows for such calendar month, which shall be delivered by the Company to Parent within ten fifteen days after the end of such calendar month;
(iiib) the unaudited quarterly consolidated balance sheets of the all material operating and financial reports prepared by each EUE Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorsits senior management;
(ivc) any written materials or communications sent by or on behalf of the any EUE Company to its stockholders (in their capacity as stockholders);
(vd) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations to any EUE Company that is a party to any Material Contract Contract, or sent to any of the Acquired Corporations EUE Company by any party to any Material Contract containing (other than any allegation of communication that relates solely to routine commercial transactions between such Party and the other party to any actual, possible, potential or threatened breach, violation or default of or under such Material Contract, and that is of the type sent in the ordinary course of business and consistent with past practices);
(vie) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixf) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations an EUE Company relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(g) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by or on behalf of a Party from any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Governmental Authority.
Appears in 1 contract
Sources: Share Exchange Agreement (Composite Technology Corp)
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 30 calendar days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Signal Material Contract or Miragen Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Signal Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Miragen Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Signal Material Contract or Miragen Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by or on behalf of a Party from any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Governmental Body.
Appears in 1 contract
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsreasonably appropriate. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Yearall material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-End Financial Statementsoff reports, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004hiring reports and capital expenditure reports prepared for its management;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Alcobra Material Contract or Arcturus Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Alcobra Material Contract containing any allegation of any actualor Arcturus Material Contract in connection the Contemplated Transactions, possible, potential or threatened breach, violation or default of or under such Material Contractas applicable;
(viiv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixv) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vi) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the Acquired Corporations protection of attorney-client privilege.
(e) Upon request by ParentArcturus, Alcobra shall provide an unaudited monthly report setting forth the Alcobra Net Cash expected at Closing as of the end of each calendar month, which shall be delivered within thirty (30) calendar days after the end of such calendar month, or such longer periods as the Parties may agree to in connection with the State Court Action or the Federal Court Actions)writing.
Appears in 1 contract
Sources: Merger Agreement (Alcobra Ltd.)
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsreasonably appropriate. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 30 calendar days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Galena Material Contract or Sellas Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Galena Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Sellas Material Contract, as applicable;
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)protection of attorney-client privilege.
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality AgreementAgreement and Gaming Laws, during the period commencing on the date of this Agreement and ending at the Effective Time of Merger I (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 to the Acquired Corporations’ Representatives, personnel, personnel and assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (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, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; and (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company Acquired Corporations as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter calendar month;
(ii) all material operating and such other related materials as are provided to financial reports prepared by the Acquired Corporations for the Company’s board of directors in connection with such quarterly financial informationsenior management, which shall be delivered by the Company to Parent within one business day after being provided to including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for the Company’s board of directorssenior management;
(iviii) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(viv) 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 containing (other than any allegation of communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any actual, possible, potential or threatened breach, violation or default of or under such Material ContractContract and that is of the type sent in the ordinary course of business and consistent with past practices);
(viv) 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 Transaction or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) 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 Corporations; and
(other than vii) any material notice, document report or other communication sent document received by or on behalf of any of the Acquired Corporations to Parent, or sent to from any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Governmental Body.
Appears in 1 contract
Access and Investigation. Subject to the Confidentiality Agreement, during During the period commencing on the date of this Agreement and ending at 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 Representatives and financing sources with reasonable access during normal business hours, on reasonable prior notice, to the Acquired Corporations’ Representatives, personnel, Company’s personnel and assets and to all existing books, records, Tax Returns, material operating and work papers, financial reportsstatements, work papers and other documents and information relating to the Acquired CorporationsCompany; (b) provide to Parent, (i) no later than the twelfth day of each month, monthly financial statements (including statements of cash and cash equivalents and amounts of indebtedness for borrowed money outstanding) of the Company and its Subsidiaries substantially in the form of and prepared on a basis consistent with those previously provided to Parent, (ii) no later than five days prior to the Closing Date, audited consolidated financial statements of the Company and its Subsidiaries for the three fiscal years ending more then 90 days prior to the Closing Date, and (iii) no later than five days prior to the Closing Date, quarterly consolidated financial statements of the Company and its Subsidiaries for each fiscal quarter ended after the close of its most recent fiscal year and at least 45 days prior to the Closing Date, in each case with respect to clauses (ii) and (iii), prepared in accordance with GAAP on a consistent basis through the periods covered (except as may be indicated in the notes to such financial statements); and (c) provide or make available to Parent and Parent’s Representatives with Representatives, at Parent’s expense, such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, Company as Parent may reasonably request; (c) permit Parent’s officers and other employees to meet, upon reasonable notice and during normal business hours, with . Without limiting the chief financial officer and other officers and managers generality of the foregoing, during the Pre-Closing Period and subject to applicable Antitrust Laws, the Company responsible for 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 the Company’s financial statements and the internal controls of the Acquired Corporations to discuss such matters , Parent or Merger Sub, as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise applicable, in connection with the Merger or any of the other Contemplated Transactions; and (d) . The foregoing shall not require the Company to permit legal counsel selected by Parentany inspection, in its sole discretionor to disclose any information, to associate that in the defense reasonable judgment of the Stockholder Lawsuits and any similar Legal ProceedingCompany, including association after consultation with legal counsel, could reasonably be expected to result in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by disclosure of any trade secrets of third parties or the violation of any obligations of the Company with respect to Parent as soon as they become availableconfidentiality or non-disclosure if the Company shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end waiver of such calendar month;
any applicable attorney-client privilege or (iii) the unaudited quarterly consolidated balance sheets violation of any applicable Legal Requirement. The parties will, to the extent reasonably necessary and practicable, make appropriate substitute arrangements under circumstances in which the restrictions of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)preceding sentence apply.
Appears in 1 contract
Sources: Merger Agreement (Connetics Corp)
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as stockholders);
(viv) subject to the confidentiality obligations of the Company set forth in the Research and License Agreement, dated as of June 29, 2009, by and between Pfizer (as a successor to Wyeth) and the Company, any material notice, document meeting minutes or other communication notice sent by or on behalf of any of the Acquired Corporations a Party to any party to any Talos Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Talos Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Talos Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vi) any non-privileged notice, material pleading or material settlement communication sent by or on behalf of, or sent to, a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any material notice, report or other document received by any of the Acquired Corporations a Party from any Governmental Body other than Authority. Notwithstanding the foregoing, any information with respect Party may restrict the foregoing access to the State Court Action extent that any Law applicable to such party requires such Party to restrict or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations relating prohibit access to any pending such properties or threatened Legal Proceeding involving information or affecting as may be necessary to preserve the attorney-client privilege under any of the Acquired Corporations (other than any notice, document circumstances in which such privilege may be jeopardized by such disclosure or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)access.
Appears in 1 contract
Sources: Merger Agreement (Targacept Inc)
Access and Investigation. 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 at the Effective Time earlier of the termination of this Agreement pursuant to its terms or the Closing Date (the “"Pre-Closing Period”"), the upon reasonable notice FLAF and Company shall, and shall cause the respective such Party's Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parent’s such other Party's Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party's Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party's Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parent’s the other Party'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 such Party responsible for the Company’s such Party's financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the each of FLAF and Company shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by unaudited monthly consolidated balance sheets of such Party as of the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report end of each calendar month and cash balances reportthe related profit and loss statements for such calendar month, which shall be delivered by the Company to Parent within ten twenty (20) days after the end of such calendar month;
(iiiii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter all material operating and the related unaudited quarterly consolidated statements of operationsfinancial reports prepared by such Party for its senior management, statements of stockholders’ equity including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and statements of cash flows capital expenditure reports prepared for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorsits senior management;
(iviii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Material material FLAF Contract or material Company Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Material material FLAF Contract containing or material Company Contract, as applicable (other than any allegation communication that relates solely to routine commercial transactions between such Party and the other party to any such material FLAF Contract or material Company Contract, as applicable, and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the Ordinary Course of or under such Material ContractBusiness);
(viv) 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 a Party in connection with the Merger Share Exchange or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Sources: Share Exchange Agreement (Farm Lands of Africa, Inc.)
Access and Investigation. (a) 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause such Party’s Representatives to:
(i) upon reasonable notice, provide the respective Representatives of the Acquired Corporations to: (a) provide Parent other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to such Party’s Representatives, personnel and assets (taking into account any restricted access to such property due to the Acquired Corporations’ Representatives, personnel, books, records, Tax Returns, material operating coronavirus (COVID-19) pandemic and financial reports, work papers the effects thereof) and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(ii) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(ciii) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate reasonably appropriate. Any investigation conducted by either Party pursuant to this Section 4.1 shall be conducted in order such manner as not to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection interfere unreasonably with the Merger or any conduct of the business of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsParty. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i1) the Audited Yearall material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-End Financial Statementsoff reports, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004hiring reports and capital expenditure reports prepared for its management;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv2) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(v3) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Intec Material Contract or Decoy Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Intec Material Contract containing any allegation of any actualor Decoy Material Contract in connection the Transactions, possible, potential or threatened breach, violation or default of or under such Material Contractas applicable;
(vi4) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix5) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(6) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(iv) Notwithstanding the foregoing: (i) any Party may restrict the foregoing access to the extent that (x) any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information, (y) such access to the Acquired Corporations information would breach such Party’s confidentiality obligations to a third party existing as of the date hereof (provided that upon the other Party’s reasonable request such Party shall use its reasonable efforts to obtain such third party’s consent to permit such other Party access to such information, subject to appropriate confidentiality protections), or (z) such information relates to potential or actual claims relating to the Transactions against a Party by Parentany other Party; and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would jeopardize the protection of attorney-client or other legal privilege.
(b) Upon request by either Party, the other Party shall provide an unaudited monthly report setting forth Decoy Net Cash or Intec Net Cash (as applicable), as expected at Closing as of the end of each calendar month, which shall be delivered within thirty (30) calendar days after the end of such calendar month, or such longer periods as the Parties may agree to in connection with the State Court Action or the Federal Court Actions)writing.
Appears in 1 contract
Sources: Merger Agreement (Intec Pharma Ltd.)
Access and Investigation. 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 at the earlier of the termination of this Agreement pursuant to its terms or the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice DPI and Merger Partner shall, and shall cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each of DPI and Merger Partner shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen twenty (20) days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and capital expenditure reports prepared for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Material material DPI Contract or material Merger Partner Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Material material DPI Contract containing or material Merger Partner Contract, as applicable (other than any allegation communication that relates solely to routine commercial transactions between such Party and the other party to any such material DPI Contract or material Merger Partner Contract, as applicable, and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the Ordinary Course of or under such Material ContractBusiness);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Sources: Agreement and Plan of Merger and Reorganization (Discovery Partners International Inc)
Access and Investigation. Subject to the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (Time, ( 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 to the Acquired Corporations’ Representatives, personnel, personnel and assets and to all existing books, records, Tax Returns, material operating and financial reports, work papers and other documents and information relating to the Acquired Corporations; (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, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; and (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company Acquired Corporations as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen business days after the end of such fiscal quarter calendar month, commencing with a delivery on December 21, 2005;
(ii) an updated cash budget and such other related materials as are provided cash forecast (in the format set forth in Annex 2.4(g) to the Company’s board of directors in connection with such quarterly financial informationDisclosure Letter), which shall be delivered by the Company to Parent within one on the fifteenth business day after being provided of each calendar month;
(iii) subject to the limitations in the Confidentiality Agreement, all material operating and financial reports prepared by the Acquired Corporations for the Company’s board of directorssenior management, including 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;
(iv) any written materials or communications sent by or on behalf of the Company to its stockholders (in their capacity as stockholders);
(v) 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 containing (other than any allegation of communication that relates solely to routine commercial transactions between an Acquired Corporation and the other party to any actual, possible, potential or threatened breach, violation or default of or under such Material ContractContract and that is of the type sent in the ordinary course of business and consistent with past practices);
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court ActionsBody;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Corporations.
Appears in 1 contract
Sources: Merger Agreement (Ipass Inc)
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; and (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; (c) permit Parent’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 financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen (x) thirty (30) days after the end of such fiscal quarter and calendar month, with respect to Chardonnay, or (y) forty-eight hours (48) hours after delivery to Riesling’s stockholders, with respect to Riesling, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as stockholders);
(v) 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;
(viiv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;; and
(viiv) any material notice, report or other document received by any of the Acquired Corporations a Party from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, Authority in connection with the State Court Action Merger or any of the Contemplated Transactions. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Law applicable to such party or any Contract binding on a Party prior to the date hereof requires such Party to restrict or prohibit access to any such properties or information or as may be necessary to preserve the attorney-client privilege under any circumstances in which such privilege may be jeopardized by such disclosure or access, provided that the Party so restricting such access uses reasonable efforts to provide the maximum access allowed by such restriction. No investigation conducted pursuant to this Section 4.1 shall affect any representation or warranty given by any Party hereunder or disclosed in the Chardonnay Disclosure Schedule or the Federal Court Actions)Riesling Disclosure Schedule or in the certificates referenced in Section 7.3 and 8.3 or otherwise affect or limit the remedies available under this Agreement.
Appears in 1 contract
Access and Investigation. 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 at the Effective Time Time, unless this Agreement is earlier terminated pursuant to the terms hereof (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsappropriate. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen twenty (20) days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorscalendar month;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its senior management;
(iii) any written materials or communications sent by or on behalf of the Company to a Party to, or received from, its stockholders and, with respect to Corautus, any self-regulatory organization (in their capacity as stockholdersincluding The NASDAQ Capital Market);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Corautus Material Contract or VIA Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Corautus Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such VIA Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Corautus Material Contract or VIA Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(viivi) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party, and, with regard to any Legal Proceeding set forth on Section 3.16 of the Acquired Corporations (Corautus Disclosure Schedule or Section 2.16 of the VIA Disclosure Schedule, Corautus or VIA, as applicable, shall provide the other than any notice, document or other communication sent Party and its counsel in advance filings to be made by or on behalf of Corautus or VIA, as applicable, with regard to such Legal Proceeding and the other Party the opportunity to comment on such filings and shall provide the other Party all information and correspondence with any of the Acquired Corporations to Parent, broker or sent to any of the Acquired Corporations by Parent, insurer in connection with any insurance policy or policies applicable to such Legal Proceeding; and
(vii) any material notice, report or other document received by a Party from any Governmental Body. Notwithstanding the State Court Action foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such party requires such Party or the Federal Court Actions)its Subsidiaries to restrict or prohibit access to any such properties or information or if such restriction is needed to protect attorney-client privilege.
Appears in 1 contract
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇S▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party, upon written request, copies of:
(i) the Audited Yearall material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-End Financial Statementsoff reports, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004hiring reports and capital expenditure reports prepared for its management;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viii) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Monster Material Contract or Innovate Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Monster Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Innovate Material Contract, as applicable (other than any communication that relates solely to (A) any Spinoff Contract and (B) routine commercial transactions between such Party and the other party to any such Monster Material Contract or Innovate Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viiv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixv) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party that would reasonably be expected to (A) have an adverse effect on such Party’s ability to comply with or perform any covenant or obligation under this Agreement (B) expected to have the effect of preventing, delaying, making illegal or otherwise interfering with the Merger or any of the Acquired Corporations Contemplated Transactions, (other than C) impair the right or ability of Monster or the Surviving Corporation and its Subsidiaries to conducts its business after the Effective Time (after taking into account the Permitted Monster Asset Sale and Spinoff); and
(vi) any material notice, document report or other communication sent document received by a Party from any Governmental Body that would reasonably be expected to (A) have an adverse effect on such Party’s ability to comply with or on behalf perform any covenant or obligation under this Agreement (B) expected to have the effect of preventing, delaying, making illegal or otherwise interfering with the Merger or any of the Acquired Corporations Contemplated Transactions, (C) impair the right or ability of Monster or the Surviving Corporation and its Subsidiaries to Parentconducts its business after the Effective Time (after taking into account the Permitted Monster Asset Sale and Spinoff).
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party to restrict or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such access or disclosure would be reasonably likely to result in such Party forfeiting the Acquired Corporations by Parentprotection of attorney-client privilege between it and its counsel with respect to such information, in connection with the State Court Action which event such party shall cause such information to be delivered in a form or the Federal Court Actions)summary, including any redactions that may be necessary, so as to provide as much requested information as reasonably practicable while retaining such privilege.
Appears in 1 contract
Access and Investigation. 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 at the Effective Time earlier of the termination of this Agreement pursuant to its terms or the Closing Date (the “"Pre-Closing Period”"), the Company upon reasonable notice ONCE, ISI and DTI shall, and shall cause the respective such Party's Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parent’s such other Party's Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party's Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party's Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parent’s the other Party'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 such Party responsible for the Company’s such Party's financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each of ONCE, ISI and DTI shall promptly provide Parent the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by unaudited monthly consolidated balance sheets of such Party as of the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report end of each calendar month and cash balances reportthe related profit and loss statements for such calendar month, which shall be delivered by the Company to Parent within ten twenty (20) days after the end of such calendar month;
(iiiii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter all material operating and the related unaudited quarterly consolidated statements of operationsfinancial reports prepared by such Party for its senior management, statements of stockholders’ equity including sales forecasts, marketing plans, development plans, discount reports, write off reports, hiring reports and statements of cash flows capital expenditure reports prepared for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorsits senior management;
(iviii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Material material ONCE and ISI Contract or material DTI Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Material material ONCE and ISI Contract containing or material DTI Contract, as applicable (other than any allegation communication that relates solely to routine commercial transactions between such Party and the other party to any such material ONCE and ISI Contract or material DTI Contract, as applicable, and that is of any actual, possible, potential or threatened breach, violation or default the type sent in the Ordinary Course of or under such Material ContractBusiness);
(viv) 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 a Party in connection with the Merger Share Exchange or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such Party requires such Party or on behalf of any of the Acquired Corporations its Subsidiaries to Parent, restrict or sent prohibit access to any of the Acquired Corporations by Parent, in connection with the State Court Action such properties or the Federal Court Actions)information.
Appears in 1 contract
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) any written materials or communications sent by or on behalf of the Company a Party to all of its stockholders (in their capacity as stockholders);
(viii) any material notice, document meeting minutes or other communication notices sent by or on behalf of any of the Acquired Corporations a Party to any party to any Orion Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Orion Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Orion Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viiv) any notice, report or other document filed with or otherwise furnished, submitted or sent to any Governmental Body Authority on behalf of any of the Acquired Corporations a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixv) any non-privileged notice, document material pleading or other material settlement communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party;
(vi) any material notice, report or other document received by a Party from any Governmental Authority; and
(vii) all material operating and financial reports prepared by such Party for its senior management, including projections, forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management; Any investigation conducted by either Orion or the Company pursuant to this Section 4.1 shall be conducted in such manner as to not interfere unreasonably with the conduct of the Acquired Corporations (other than any notice, document or other communication sent by or on behalf of any business of the Acquired Corporations other Party. Notwithstanding the foregoing, any Party may restrict the foregoing access to Parent, the extent that any Law applicable to such party requires such Party to restrict or sent prohibit access to any of such properties or information or as may be necessary to preserve the Acquired Corporations attorney-client privilege under any circumstances in which such privilege may be jeopardized by Parent, in connection with the State Court Action such disclosure or the Federal Court Actions)access.
Appears in 1 contract
Sources: Merger Agreement (OvaScience, Inc.)
Access and Investigation. 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 at the earlier of the date of termination of this Agreement and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice, each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: (a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries; (b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and (c) permit Parentthe other Party’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 such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent the other Party to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsthereto. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent make available to the other Party with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen thirty (30) days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any Tranzyme Material Contract or Company Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any Tranzyme Material Contract containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Company Material Contract, as applicable (other than any communication that relates solely to routine commercial transactions between such Party and the other party to any such Tranzyme Material Contract or Company Material Contract, as applicable, and that is of the type sent in the Ordinary Course of Business and consistent with past practices);
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body. Notwithstanding the foregoing, any Party may restrict the foregoing access to the extent that any Legal Requirement applicable to such party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such properties or information or as may be necessary to preserve the Acquired Corporations attorney-client privilege under any circumstances in which such privilege may be jeopardized by Parent, in connection with the State Court Action such disclosure or the Federal Court Actions)access.
Appears in 1 contract
Sources: Merger Agreement (Tranzyme Inc)
Access and Investigation. Subject to the Confidentiality Agreement, during (a) During the period commencing on from the date of this Agreement and ending at through the earlier of the Effective Time or the valid termination of this Agreement in accordance with Section 8 (the “Pre-Closing Period”), the Company shall, and shall cause the respective Representatives each of the Acquired Corporations Companies to: (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours, in such a manner as to not interfere unreasonably with the operations of the Acquired Companies, to the senior management, personnel and assets of the Acquired Corporations’ Representatives, personnel, Companies and to all existing books, records, Tax Returns, material operating and financial reportswork papers, work papers Acquired Company Contracts and other documents and information relating to the Acquired CorporationsCompanies; and (b) provide Parent and Parent’s Representatives (at Parent’s sole cost and expense) with such copies of the such existing books, records, Tax Returns, work papers papers, Acquired Company Contracts and other documents and information relating to the Acquired CorporationsCompanies, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request; provided, however, access to any work papers prepared by the Acquired Companies’ independent auditor may be subject to the execution by Parent of a customary “hold harmless” letter reasonably satisfactory to such independent auditors.
(cb) Without limiting the generality of the previous sentence, during the Pre-Closing Period, the Company shall, and shall cause the Representatives of each of the Acquired Companies to, permit Parent’s 's senior officers and other employees to meet, upon reasonable notice and during normal business hours, meet with the chief financial officer Controller of the Company and other officers and managers of the Company Acquired Companies responsible for the Company’s financial statements and statements, the internal controls of the Acquired Corporations Companies and the disclosure controls and procedures of the Acquired Companies 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 or otherwise in connection with thereto.
(c) During the Merger or any Pre-Closing Period:
(i) within 25 days after the end of each calendar month during the Pre-Closing Period that is not the last month of a fiscal quarter, the Company shall deliver to Parent (A) a consolidated balance sheet of the other Contemplated Transactions; Company and its consolidated Subsidiaries as of the last day of such calendar month, and (dB) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense consolidated statements of the Stockholder Lawsuits income and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreementextent reasonably requested by Parent (on behalf of lenders to, and/or equity investors in, Parent) cash flows for such calendar month; and
(ii) within 45 days after the end of each fiscal quarter during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company deliver to Parent as soon as they become available, but in no event later than December 15, 2004;
(iiA) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets sheet of the Company and its consolidated Subsidiaries as of the end last day of each such fiscal quarter quarter, and the related unaudited quarterly (B) consolidated statements of operationsincome, statements of stockholders’ equity and statements of cash flows for such fiscal quarter.
(d) During the Pre-Closing Period, as well as a quarterly revenue forecast, all of which shall be delivered by the Company shall cooperate with, and provide reasonable assistance to, Parent and Parent’s Representatives in the preparation of projections including forecasted consolidated and consolidating balance sheets and statements of income and cash flows for the Acquired Companies, together with explanations of the assumptions on which such forecasts are based as reasonably requested by Parent for the purpose of providing such information to potential lenders to, and/or equity investors in, Parent within fifteen days after or the end of such fiscal quarter and such other related materials as are provided to Surviving Corporation. Notwithstanding the Company’s board of directors in connection with such quarterly financial informationforegoing, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) but without limiting any written materials representation or communications sent by or on behalf warranty of the Company expressly set forth in this Agreement, Parent acknowledges and agrees that the Company makes no representations with respect to its stockholders (such projections, that there can be no guarantee of the future operating results of the Company, and in their capacity no event shall any Parent Indemnitee have any claim for indemnification hereunder as stockholders);a result of such projections or the failure to achieve the projected operating results set forth therein.
(ve) The Company shall promptly notify Parent in the event that any material notice, document error is identified in the financial statements of the Company or other communication sent by information included in the definitive Proxy Statement mailed to Parent’s stockholders which would require Parent to mail a supplement or on behalf amendment to the Proxy Statement to Parent’s stockholders. The Company shall bear or pay prior to the Closing all costs associated with any additional mailings referenced in the preceding sentence required as a result 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 containing any allegation of any actual, possible, potential or threatened breach, violation or default of or under such Material Contract;error.
(vif) During the Pre-Closing Period, the Company shall provide to Parent any notice, report new or other document filed with or otherwise furnished, submitted or sent revised forecasts given to any Governmental Body on behalf of any of the an Acquired Corporations in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received Company by any of the Acquired Corporations customers identified in Part 2.7(d) of the Disclosure Schedule that would have been required to be included in Part 2.7(d) of the Disclosure Schedule if such forecasts had been the last forecasts received from any Governmental Body other than any information with respect each such customer prior to the State Court Action date hereof. Such new or Federal Court Actions;
revised forecasts shall be delivered to Parent on a monthly basis or to the extent not previously required to be provided, no fewer than two (viii2) any material correspondence between any business days prior to the Closing Date. The Company shall make the employees of the Acquired Corporations Companies available to Parent upon reasonable notice and any insurance carrier or insurance broker; and
(ix) 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 (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, during normal business hours in connection with the State Court Action or the Federal Court Actions)inquiries relating to such forecasts.
Appears in 1 contract
Access and Investigation. 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 at continuing until the earlier of the termination of this Agreement in accordance with the terms hereto and the Effective Time (the “Pre-Closing Period”), the Company upon reasonable notice each Party shall, and shall use commercially reasonable efforts to cause the respective such Party’s Representatives of the Acquired Corporations to: :
(a) provide Parent the other Party and Parentsuch other Party’s Representatives with reasonable access during normal business hours to the Acquired Corporations’ such Party’s Representatives, personnel, books, records, Tax Returns, material operating personnel and financial reports, work papers assets and other documents and information relating to the Acquired Corporations; (b) provide Parent and Parent’s Representatives with such copies of the all existing books, records, Tax Returns, work papers and other documents and information relating to such Party and its Subsidiaries;
(b) provide the Acquired Corporationsother Party and such other Party’s Representatives with such copies of the existing books, records, Tax Returns, work papers, product data, and other documents and information relating to such Party and its Subsidiaries, and with such additional financial, operating and other data and information regarding such Party and its Subsidiaries as the Acquired Corporations, as Parent other Party may reasonably request; and
(c) permit Parentthe other Party’s officers and other employees to meet, upon reasonable notice and during normal business hours, with the chief financial officer and or other officers and managers of the Company such Party responsible for the Companysuch Party’s financial statements and the internal controls of the Acquired Corporations such Party to discuss such matters as Parent the other Party may reasonably deem necessary or appropriate in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactions; and (d) permit legal counsel selected by Parent, in its sole discretion, to associate in the defense of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tacticsreasonably appropriate. Without limiting the generality of any of the foregoing, subject to the Confidentiality Agreement, during the Pre-Closing Period, the Company each Party shall promptly provide Parent with make available to the other Party copies of:
(i) the Audited Year-End Financial Statements, which shall be provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a unaudited monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company such Party as of the end of each fiscal quarter calendar month and the related unaudited quarterly monthly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quartercalendar month, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen 30 calendar days after the end of such fiscal quarter and calendar month, or such other related materials longer periods as are provided the Parties may agree to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directorswriting;
(ivii) all material operating and financial reports prepared by such Party for its senior management, including sales forecasts, marketing plans, development plans, discount reports, write-off reports, hiring reports and capital expenditure reports prepared for its management;
(iii) any written materials or communications sent by or on behalf of the Company a Party to its stockholders (in their capacity as stockholders);
(viv) any material notice, document or other communication sent by or on behalf of any of the Acquired Corporations a Party to any party to any TapImmune Material Contract or Marker Material Contract, as applicable, or sent to any of the Acquired Corporations a Party by any party to any TapImmune Material Contract containing any allegation of any actualor Marker Material Contract in connection the Contemplated Transactions, possible, potential or threatened breach, violation or default of or under such Material Contractas applicable;
(viv) 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 a Party in connection with the Merger or any of the other Contemplated Transactions;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ixvi) any non-privileged notice, document or other communication sent by or on behalf of, or sent to, any of the Acquired Corporations a Party relating to any pending or threatened Legal Proceeding involving or affecting such Party; and
(vii) any of the Acquired Corporations (other than any material notice, document report or other communication sent document received by a Party from any Governmental Body.
(d) Notwithstanding the foregoing, (i) any Party may restrict the foregoing access to the extent that such Party reasonably believes any Legal Requirement applicable to such Party requires such Party to restrict or on behalf of any of the Acquired Corporations to Parent, or sent prohibit access to any of such Party’s properties or information and (ii) neither Party nor its respective Representatives or Subsidiaries shall be required to provide access to or disclose information where such Party reasonably believes access or disclosure would jeopardize the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)protection of attorney-client privilege.
Appears in 1 contract
Sources: Merger Agreement (Tapimmune Inc.)
Access and Investigation. Subject From and after the Closing Date, and until completion of the audit of the financial statements of the Business that the Company intends to include in the Confidentiality Agreement, during the period commencing on the date of this Agreement and ending at the Effective Time (the “Pre-Closing Period”)Registration Statement, the Company shall, Seller shall (and shall use commercially reasonable efforts to cause the respective its Representatives of the Acquired Corporations to: ): (a) provide Parent the Company, the Purchaser and Parent’s their Representatives with reasonable access updates to the Acquired Corporations’ RepresentativesFinancial Statements to bring them as of and through the Closing Date (i.e., personnelunaudited balance sheet as of the Closing Date and unaudited statements of operations and cash flows for the period from January 1, books2008 through the Closing Date) but without “carve-out” expenses such as allocated general, records, Tax Returns, material operating and financial reports, work papers administrative and other documents and information relating to the Acquired Corporationscorporate overhead (“G&A”); (b) provide Parent the Company, the Purchaser and Parenttheir Representatives with all the supporting schedules and other documentation used for the preparation of audited financial statements for the Business, consistent with the Initial Request & Open Questions List, dated July 14, 2008 and attached hereto as Exhibit H; (c) provide the Company, the Purchaser and their Representatives with all schedules or other documentation used to calculate indirect expenses such as rent that may be allocated across different Seller business units; (d) provide the Company, the Purchaser and their Representatives with any other schedules and documentation as the Company or the Purchaser may reasonably request to calculate other “carve-out” expenses such as G&A; (e) provide the Company, the Purchaser and their Representatives with access to the Seller’s Representatives with such copies of (including the Seller’s auditors), and personnel and to all existing books, records, Tax Returns, work papers and other documents and information relating exclusively to the Acquired CorporationsBusiness and the Assets; (f) provide the Company, the Purchaser and their Representatives with such additional financialcopies of existing books, operating records, Tax Returns, work papers and other data documents and information regarding relating exclusively to the Acquired Corporations, Business and the Assets in its possession or control as Parent may reasonably request; (c) permit Parent’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 or the Company’s financial statements and the internal controls of the Acquired Corporations to discuss such matters as Parent Purchaser may reasonably deem necessary or appropriate request in order to enable Parent to satisfy its obligations under the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and the rules and regulations relating thereto or otherwise in connection with the Merger or any of the other Contemplated Transactionsgood faith; and (dg) permit legal counsel selected by Parentotherwise cooperate with the Company, in its sole discretion, the Purchaser and their Representatives with regard to associate the preparation and audit of the financial statements of the Business that the Company intends to include in the defense Registration Statement. The parties hereto understand that, upon completion of the Stockholder Lawsuits and any similar Legal Proceeding, including association in matters of strategy and tactics. Without limiting the generality of any audit of the foregoingfinancial statements of the Business that the Company intends to include in the Registration Statement, subject (x) to the Confidentiality Agreement, during the Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) the Audited Year-End Financial Statements, which shall be extent provided by the Company to Parent as soon as they become available, but in no event later than December 15, 2004;
(ii) a monthly booking forecast, expenditures report and cash balances report, which shall be delivered by the Company to Parent within ten days after the end of such calendar month;
(iii) the unaudited quarterly consolidated balance sheets of the Company as of the end of each fiscal quarter and the related unaudited quarterly consolidated statements of operations, statements of stockholders’ equity and statements of cash flows for such fiscal quarter, as well as a quarterly revenue forecast, all of which shall be delivered by the Company to Parent within fifteen days after the end of such fiscal quarter and such other related materials as are provided to the Company’s board of directors in connection with such quarterly financial information, which shall be delivered by the Company to Parent within one business day after being provided to the Company’s board of directors;
(iv) any written materials or communications sent made by or on behalf of the Seller, the Seller will represent to the accuracy of (i) the Financial Statements, including the updated Financial Statements referred to in Section 10.4(a) above (and associated footnotes) as of the Closing Date and (ii) all schedules and documentation of the Business associated with the foregoing clause (i) and as per Section 10.4(b) above prior to “carve-out” expenses such as G&A; (y) the Purchaser and the Company will represent to its stockholders the allocated expenses such as G&A and the calculation thereof; and (in their capacity as stockholders);
(vz) any material notice, document or other communication sent the Seller will represent to the accuracy of schedules and documentation provided by or on behalf of any the Seller and used by the Purchaser or the Company to calculate such allocated expenses. Notwithstanding the foregoing, the foregoing obligations of the Acquired Corporations Seller shall be limited to any party to any Material Contract providing such information or sent to any of documentation as may be in the Acquired Corporations by any party to any Material Contract containing any allegation of any actual, possible, potential possession or threatened breach, violation or default of or under such Material Contract;
(vi) 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;
(vii) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Body other than any information with respect to the State Court Action or Federal Court Actions;
(viii) any material correspondence between any of the Acquired Corporations and any insurance carrier or insurance broker; and
(ix) any non-privileged notice, document or other communication sent by or on behalf control of, or sent toreasonably obtainable by, any of the Acquired Corporations relating to any pending Seller or threatened Legal Proceeding involving or affecting any of its accountants, and in a format that the Acquired Corporations (other than any notice, document or other communication sent by or on behalf of any of the Acquired Corporations to Parent, or sent to any of the Acquired Corporations by Parent, in connection with the State Court Action or the Federal Court Actions)Seller has maintained such information.
Appears in 1 contract