Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto. (b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (News Corp), Merger Agreement (Move Inc)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawExchange Closing Date, the Company shallFE Subsidiaries will, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such booksupon reasonable notice, Contractsprovide DLC, commitments the DLC Representatives, the Auction Participants and records the Winning Bidders:
(including Tax Returnsi) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide reasonable access to their work papers managerial personnel and such to all books, records, plans, equipment, offices and other information as Acquiror or Merger Sub may reasonably request, facilities and properties constituting the FE Assets;
(ii) furnish Acquiror and Merger Sub with such historical financial and operating data and other information with respect to the business, properties and personnel of the Company FE Assets as Acquiror or Merger Sub they may from time to time reasonably request, ;
(iii) furnish promptly to Acquiror and Merger Sub upon request, a copy of each material report, schedule and or other document filed by FE or received any FE Subsidiary with respect to the FE Assets with the SEC, FERC, PUCO, PaPUC, PaDEP or any other Governmental Authority;
(iv) access to each FE Asset for Inspection by DLC, DLC Representatives, Auction Participants and Winning Bidders at reasonable times during regular business hours scheduled for such Inspections, and shall provide qualified management, engineering, operations and maintenance and other personnel to make presentations as required, to escort such Persons and to assist in all aspects of conducting the Inspections, provided that each of DLC, the Auction Participants, the Winning Bidders and the FE Subsidiaries shall bear their own costs of participating in the Inspections; and
(v) with all such other information in the possession or control of an FE Subsidiary as shall be reasonably necessary to enable DLC, the DLC Representatives and the Auction Participants to assemble the information reasonably necessary or appropriate for the Auction or to verify the accuracy of the representations and warranties of the FE Subsidiaries contained in this Agreement; provided, however, that (A) any such Inspections shall be conducted in such a manner as not to interfere unreasonably with the operation of the FE Assets, (B) the applicable FE Subsidiary shall not be required to take any action which would constitute a waiver of any legal privilege, including, but not limited to, the attorney-client privilege, the work product privilege, and the self critical investigation privilege, and (C) the applicable FE Subsidiary need not supply DLC, any Auction Participant or any Winning Bidder with any information which such FE Subsidiary are under a legal or contractual obligation to withhold from disclosure. Notwithstanding anything in this Section 8.2(a) to the contrary, with respect to employee records the FE Subsidiaries will only furnish or provide such access to FE Transferred Employee Records and will not furnish or provide access to other employee personnel records or medical information unless required by law or specifically authorized by the Company or affected employee.
(i) DLC, the DLC Representatives, the Auction Participants and the Winning Bidders shall be entitled to conduct Inspections, in accordance with this Section 8.2(b), of all of the FE Assets located adjacent to any Connection Point (as defined in the FE Connection Agreements) to verify and/or determine the accuracy of its the data, drawings, and records described in the FE Connection Agreements. The Parties shall cooperate to schedule DLC's, the Auction Participants' and the applicable Winning Bidder's Inspections of the FE Assets so that any interference with the operation of each FE Plant is minimized, to the extent reasonably feasible, and so that DLC, the Auction Participants and such Winning Bidder may complete their Inspections of the FE Assets within thirty (30) working days of commencement of Inspections and within two (2) months after the execution of the Auction Agreements.
(ii) At a mutually convenient time not more than one (1) month after DLC, the Auction Participants and the Winning Bidders have completed their Inspections, the Parties shall meet to discuss whether, as a result of the Inspections, it is appropriate to modify the exhibits to the FE Connection Agreements to portray more accurately the Connection Points. Any modification to any portion of the exhibits to any FE Connection Agreement to which the respective Parties agree shall thereafter be deemed part of such exhibit for all purposes under such FE Connection Agreement.
(c) The FE Subsidiaries during such period pursuant agree that in order to satisfy the requirements of the federal or state securities Laws Auction, it is necessary and hereby agree (i) to complete surveys and title reports for the FE Real Property, (ii) to subdivide the FE Real Property appropriately to prepare it for sale, in each case as soon as practicable following the execution of this Agreement, and (iviii) to provide DLC with a copy of preliminary title reports and surveys for the FE Real Property as soon as such preliminary title reports and surveys are available. DLC agrees to provide the applicable FE Subsidiaries with a copy of preliminary title reports and surveys for the DLC Real Property as soon as such preliminary title reports and surveys are available.
(d) For seven (7) years after the Exchange Closing Date (or such longer period as may be required by applicable law), each Party and its Representatives (and under the terms of the respective Auction Agreement, the applicable Winning Bidder and its Representatives) shall have reasonable access to all of the books and records of the Exchange Assets, including all FE Transferred Employee Records in the possession of any Party to the extent that such access may reasonably be required in connection with the Assumed Liabilities or the Excluded Liabilities, or regarding other matters relating to or affected by the operation of the Exchange Assets. Such access shall be afforded by the applicable Winning Bidder or the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Person exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the holder of the information with respect to such access pursuant to this Section 8.2(d). If the matters set forth on Section 6.03(aPerson in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period (or any such longer period), such Person shall, prior to such disposition, give the other Person a reasonable opportunity, at the latter's expense, to segregate and remove such books and records as it may select.
(e) Each Party agrees that, prior to the Exchange Closing Date, neither it nor its Representatives will contact any vendors, suppliers, employees, or other contracting parties of the Disclosure Letter, consult with Acquiror a Conveying Party or its Affiliates with respect to any decisions aspect of a legal nature related thereto and prior to the Company Conveying Party's Exchange Assets or its Subsidiaries responding to any request or submitting any documentation in response theretothe transactions contemplated hereby, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquirorthe applicable Conveying Party, which consent shall not be unreasonably withheld or delayedwithheld. Notwithstanding For avoidance of doubt, if the foregoingConveying Party is an FE Subsidiary, the Company and its Subsidiaries shall not consent will only be obligated to provide needed from such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoFE Subsidiary.
(bf) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 Each Party shall be subject to provide the provisions other with (i) copies of its Annual Report on Form 10-K filed with the Confidentiality AgreementSEC for the fiscal year ended December 31, 1998, as soon as practicable but in no event later than March 31, 1999, and (ii) copies of its Quarterly Reports on Form 10-Q filed with the SEC for those quarters ended March 31, 1999, June 30, 1999 and September 30, 1999, as soon as practicable after each such report is filed with the SEC.
Appears in 2 contracts
Sources: Generation Exchange Agreement (Dqe Inc), Generation Exchange Agreement (Duquesne Light Co)
Access to Information. Other than in circumstances in which indemnification is sought pursuant to Article V (in which event the provisions of such Article V shall govern) or for matters related to provision of Tax Records (in which event the provisions of the Tax Matters Agreement shall govern) and subject to appropriate restrictions for Privileged Information or Confidential Information:
(a) During After the period from Effective Time, and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Vontier for specific and identified Information:
(i) that (x) relates to Vontier or the Vontier Business, as the case may be, prior to the Effective Time or (y) is necessary for Vontier to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Fortive and/or Vontier are parties, Fortive shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Vontier has a reasonable need for such originals) in the possession or control of Fortive or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Vontier; provided that, to the extent any originals are delivered to Vontier pursuant to this Agreement or the Ancillary Agreements, Vontier shall, at its own expense, return them to Fortive within a reasonable time after the need to retain such originals has ceased; provided, further that, such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the first anniversary of the date of this Agreement continuing until Agreement; provided, further that, in the earlier of the valid termination of this Agreement event that Fortive, in its sole discretion, determines that any such access or the Effective Time, subject to the requirements provision of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submissionInformation would violate any Law or Contract with a third party or could reasonably result in the waiver of any Privilege, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries Fortive shall not be obligated to provide such accessInformation requested by Vontier;
(ii) that (x) is required by Vontier with regard to reasonable compliance with reporting, inspectionsdisclosure, data filing or other requirements imposed on Vontier (including under applicable securities laws) by a Governmental Entity having jurisdiction over Vontier, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Fortive shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Vontier has a reasonable need for such originals) in the possession or control of Fortive or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Vontier; provided that, to the extent any originals are delivered to Vontier pursuant to this Agreement or the Ancillary Agreements, Vontier shall, at its own expense, return them to Fortive within a reasonable time after the need to retain such originals has ceased; provided, further that, in the event that Fortive, in its sole discretion, determines that any such access or the provision of any such Information would violate any Law or Contract with a third party or waive any Privilege, Fortive shall not be obligated to provide such Information requested by Vontier; or
(b) After the Effective Time, and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Fortive for specific and identified Information:
(i) that (x) relates to matters prior to the Effective Time, (y) is necessary for Fortive to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Fortive and/or Vontier are parties or (z) is requested by Fortive in connection with its consideration of the timing or manner in which it will effect the Subsequent Disposition or the Remaining Disposition, Vontier shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Fortive has a reasonable need for such originals) in the possession or control of Vontier or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Fortive; provided that, to the extent any originals are delivered to Fortive pursuant to this Agreement or the Ancillary Agreements, Fortive shall, at its own expense, return them to Vontier within a reasonable time after the need to retain such originals has ceased; provided, further that, in the event any such access or the provision of any such Information would violate any Law or Contract with a third party or waive any Privilege, Vontier shall not be obligated to provide such Information requested by Fortive.
(ii) that (x) is required by Fortive with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Fortive (including under applicable securities laws) by a Governmental Entity having jurisdiction over Fortive, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Vontier shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Fortive has a reasonable need for such originals) in the possession or control of Vontier or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Fortive; provided that, to the extent any originals are delivered to Fortive pursuant to this Agreement or the Ancillary Agreements, Fortive shall, at its own expense, return them to Vontier within a reasonable time after the need to retain such originals has ceased.
(c) Each of Fortive and Vontier shall inform their respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the other Party’s Confidential Information or other information provided pursuant to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality this Article VI of their obligation to any Person hold such information confidential in accordance with the provisions of this Agreement.
(d) Without limiting the generality of the foregoing, until the first Vontier fiscal year end occurring during the year in which the Distribution occurs (and for a reasonable period of time afterwards as required for each of Fortive and Vontier to prepare consolidated financial statements or any Law; provided, however, that in complete a financial statement audit for the case of clause (A) and (Bfiscal year during which the Distribution occurs), the Company shall, each of Fortive and Vontier shall cause use its Subsidiaries to, use commercially reasonable efforts to obtain any required consents cooperate with the other Party’s Information requests to provide such accessenable (i) the other Party to meet its timetable for dissemination of its earnings releases, inspectionsfinancial statements and management’s assessment of the effectiveness of its disclosure controls and procedures and its internal control over financial reporting in accordance with Items 307 and 308, data or respectively, of Regulation S-K promulgated under the Exchange Act; and (ii) the other information Party’s accountants to timely complete their review of the quarterly financial statements and take such other action (such as audit of the redaction of identifying or confidential informationannual financial statements, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsincluding, to the extent practicable applicable to such Party, its auditor’s audit of its internal control over financial reporting and management’s assessment thereof in accordance with Section 404 of the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002, the Commission’s and Public Company Accounting Oversight Board’s rules and auditing standards thereunder and any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoapplicable Laws.
(be) All information obtained by Acquiror On the Distribution Date, Vontier shall deliver to Fortive an electronic copy of any and all databases in the possession of any member of the Vontier Group that exist as of such date and were established at or Merger Sub pursuant to this Section 6.03 shall be subject prior to the provisions Effective Time to retain records relating to the organizational structure, business or operations of the Confidentiality AgreementVontier Business or as otherwise may be requested by Fortive.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Vontier Corp), Separation and Distribution Agreement (Vontier Corp)
Access to Information. (a) During On or before 5 days after the period from the date execution of this Agreement continuing until Letter of Intent, and for a period of 21 days thereafter, Seller shall permit Buyer, its investors and other sources of financing, and their accountants, counsel, and other representatives and agents to have reasonable access to the earlier properties and the books, records, contracts, and other documents and information concerning the businesses, finances, and assets of Seller. They shall also have reasonable access during normal business hours and upon reasonable notice to legal, financial, accounting, and other representatives of Seller with knowledge of the valid termination of this Agreement or the Effective Timebusinesses, subject to the requirements of applicable Law, the Company shallfinances, and assets of Seller. However, they shall cause not contact any employees or customers of Seller without Seller's approval, which it shall not unreasonably withhold or delay. Seller shall have the right to have a representative present at any meeting with employees and customers. Seller shall not be required to grant access that is prohibited by law. D. Prohibition on Disclosure of Confidential Information Neither Buyer nor any of its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular representatives or agents shall disclose to any third party any confidential or proprietary information about the business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) activities or assets of Seller or any of the Company and its Subsidiaries transactions contemplated by this Agreement, except as Acquiror required by applicable law. Buyer may disclose such confidential or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other proprietary information as Acquiror or Merger Sub may reasonably requestnecessary for it to obtain financing for this acquisition, (ii) furnish Acquiror but only if the person receiving the information executes an agreement legally enforceable by Seller to keep such information confidential. If ▇▇▇▇▇▇ and Merger Sub with such financial and operating data ▇▇▇▇▇ are unable to agree on the sale of Seller's assets to ▇▇▇▇▇, Buyer shall return all records, contracts, and other information with respect to the business, properties about Seller that it obtained during their negotiations Seller and personnel ▇▇▇▇▇ agree that any breach of the Company as Acquiror prohibition against the disclosure of confidential or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror proprietary information will cause irreparable injury and Merger Sub a copy of each report, schedule and other document filed or received by that any remedy at law for the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)breach will be inadequate. Therefore, the Company and its Subsidiaries shall not parties agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case event of clause (A) and (B)any breach by Buyer of this provision, the Company shall, and Seller shall cause its Subsidiaries to, use commercially reasonable efforts be entitled to obtain any required consents preliminary and permanent injunctive relief without having to provide such access, inspections, data or prove that actual damages resulted from the breach. This injunctive relief is in addition to all other information legal and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely equitable remedies to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror which Seller may be entitled. E. Expenses Buyer and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 Seller each shall be subject to solely responsible for expenses that it incurs in connection with the provisions negotiations for the sale of Seller's assets and the consummation of the Confidentiality Agreementsale and other transactions contemplated by their agreement.
Appears in 2 contracts
Sources: Letter of Intent (Probe Manufacturing Inc), Letter of Intent (Probe Manufacturing Inc)
Access to Information. From the date hereof until the earlier of Closing or termination of this Agreement in accordance with Article VIII and subject to compliance with all applicable Antitrust Laws, Seller shall: (a) During afford Buyer and its Representatives reasonable access to and the period right to inspect all of the Leased Real Property, properties, assets, premises, Books and Records, Assigned Contracts and other documents and data exclusively related to the Business; and (b) furnish Buyer and its Representatives with such financial, operating and other data and information exclusively related to the Business as Buyer or any of its Representatives may reasonably request; provided that any such access shall be limited to normal business hours upon reasonable advance notice to Seller, under the supervision of Seller’s personnel and in such a manner as not to interfere with the conduct of the Business or any other businesses of Seller. All requests by Buyer for access pursuant to this Section 6.02 shall be submitted or directed exclusively to such individual as Seller shall designate in writing from time to time. In furtherance of the foregoing, Seller shall, not later than 10 Business Days before the Closing: (i) deliver a list of all current Trade Programs to Buyer; and (ii) supplement or amend (by written notice to Buyer) Section 2.01(a) of the Seller Disclosure Schedules with respect to any matter arising or discovered after the date of this Agreement continuing until that, if existing, occurring or known at or prior to the earlier of the valid termination date of this Agreement Agreement, should have been set forth or the Effective Time, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to described in such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax ReturnsSection 2.01(a) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct Seller Disclosure Schedules; provided that the Company’s (and its Subsidiaries’) independent public accountants obligation to provide access such list of Trade Programs or to their work papers and such other information as Acquiror supplement or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on amend Section 6.03(a2.01(a) of the Seller Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent Schedules shall not be unreasonably withheld or delayed. Notwithstanding the foregoingdeemed to be a condition to Closing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation nor any failure thereof give rise to any Person or any Law; provided, however, that in the case breach of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or agreement by Seller (or any related claim for indemnification). Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to disclose any information or afford access to Buyer if such disclosure or access would, in Seller’s sole discretion be reasonably likely: (x) result in the disclosure of information that is competitively sensitive in relation to, or constitutes trade secrets of, Seller and its businesses (including the Business); (y) jeopardize any attorney-client, attorney work-product or other agreement made applicable privilege; or (z) contravene any Law, fiduciary duty or Contract to which Seller or its Affiliates is a party. Prior to the Closing, without the prior written consent of Seller (which may granted Seller’s sole discretion), Buyer shall not contact any suppliers to, or customers of, the Business, and Buyer shall have no right to perform invasive or subsurface investigations of the Leased Real Property. Buyer shall, and shall cause its Representatives to, abide by the Company in this terms of the Confidentiality Agreement with respect to any access or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub provided pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement6.02.
Appears in 2 contracts
Sources: Transaction Agreement, Transaction Agreement (Starbucks Corp)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable extent permitted by Applicable Law, the Company shallSeller will give Buyer, and shall cause its Subsidiaries tocounsel, (i) give Acquiror and Merger Sub and their authorized officersfinancial advisors, employees, accountants, investment bankers, counsel auditors and other Representatives authorized representatives reasonable access (to the offices, properties, books and records of Seller relating to the Purchased Assets and the Assumed Liabilities. Any investigation pursuant to this Section shall be conducted only on reasonable advance notice during regular business hours upon reasonable notice) and in such manner as not to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) interfere unreasonably with the conduct of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel businesses of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedSeller. Notwithstanding the foregoing, the Company and its Subsidiaries Buyer shall not be obligated have access to provide such access(i) personnel records of Seller relating to individual performance or evaluation records, inspections, data medical histories or other information which in Seller’s good faith opinion is sensitive or the disclosure of which could subject Seller to the extent that risk of liability pursuant to do so Applicable Law or otherwise or (Aii) could reasonably be expected materials subject to jeopardize an confidentiality agreements or designated by Seller as competitively sensitive or attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoprivileged.
(b) All On and after the Closing Date and in accordance with Applicable Law, Buyer and Seller will each afford promptly to the other Party and its agents reasonable access to its books of account, financial and other records (including accountant’s work papers), information, employees and auditors to the extent necessary or useful for Buyer or Seller in connection with any audit, investigation, indemnification matter, dispute, litigation or any other reasonable business purpose relating to this Agreement or the transactions contemplated hereby. Any such access by Buyer or Seller shall be permitted only on reasonable advance notice during regular business hours and shall not unreasonably interfere with the conduct of the business of the other Party. Notwithstanding the foregoing, neither Party shall have access to (i) personnel records relating to individual performance or evaluation records, medical histories or other information obtained by Acquiror which in the other Party’s good faith opinion is sensitive or Merger Sub the disclosure of which could subject such Party to risk of liability pursuant to this Section 6.03 shall be Applicable Law or otherwise, (ii) materials subject to the provisions confidentiality agreements and (iii) materials designated as attorney-client privileged. The Party conducting such information request shall bear all of the Confidentiality Agreementout-of-pocket costs and expenses (including attorneys’ fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with the foregoing.
Appears in 2 contracts
Sources: Asset and Share Purchase Agreement, Asset and Share Purchase Agreement (Spansion Inc.)
Access to Information. (a) Sellers shall afford to Buyer and its Representatives reasonable access, upon reasonable notice during normal business hours, during the period prior to the Closing, to the properties, books, Contracts, records and personnel of Sellers and their respective Subsidiaries related to the Business, the Purchased Assets, the Purchased Companies, and the Subsidiaries of the Purchased Companies, including for the purpose of reviewing the Closing Statement delivered to Buyer pursuant to Section 2.9(b) of this Agreement; provided, however, that no Seller nor any Affiliate of any Seller shall be required to violate any obligation of confidentiality to which it or any of its Affiliates may be subject in discharging their obligations pursuant to this Section 5.4(a); provided, further, however, that each Seller and Affiliate of a Seller shall use commercially reasonable efforts to obtain any consent required to permit the access afforded to Buyer and its Representatives pursuant to this Section 5.4(a). During the period from the date of this Agreement continuing until the earlier earliest of the valid Closing Date or the termination of this Agreement or the Effective Timein accordance with its terms, subject Buyer hereby agrees that it is not authorized to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s not (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or shall not permit any of its Subsidiaries during such period pursuant to the requirements employees, agents, representatives or Affiliates to) contact any employee (excluding executive officers), customer, supplier or other material business relation of the federal Business regarding the Business or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to transactions contemplated by this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters Agreement without the prior written consent of Acquiror, which consent shall Sellers (not to be unreasonably withheld withheld, delayed or delayedconditioned).
(b) Buyer agrees that any investigation undertaken pursuant to the access granted under Section 5.4(a) shall be conducted in such a manner as not to unreasonably interfere with the operation of the Business, under the supervision of the applicable Purchased Company’s personnel and in such a manner as to maintain the confidentiality of this Agreement and the Transaction and the other transactions contemplated by this Agreement. Notwithstanding anything to the foregoingcontrary in this Agreement, the Company and its Subsidiaries no Seller nor any Affiliate of any Seller shall not be obligated required to provide access to or disclose information where, upon the advice of counsel, such access, inspections, data access or other information to the extent that to do so (A) could reasonably be expected to disclosure would jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to contravene any Person or any LawLaws; provided, however, that in the case each Seller and Affiliate of clause (A) and (B), the Company shall, and a Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any consent required consents to provide such accesspermit the access afforded to Buyer and its Representatives pursuant to Section 5.4(a).
(c) At and after the Closing, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company Buyer shall, and shall cause its Subsidiaries Affiliates to, use afford HD Supply, its Affiliates and their respective Representatives, during normal business hours, upon reasonable best efforts notice, consistent with applicable Law and in accordance with the procedures established by Buyer or its Affiliates, as applicable, reasonable access to institute appropriate substitute disclosure arrangementsthe personnel, books and records of the Business, the Purchased Companies and the Subsidiaries of the Purchased Companies to the extent practicable that such access may be reasonably requested by HD Supply, including in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representationconnection with financial statements, warrantytaxes, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror reporting obligations and Merger Sub related theretocompliance with applicable Laws.
(bd) All information obtained Buyer agrees to hold all the books and records of the Business existing on the Closing Date and not to destroy or dispose of any thereof for a period of seven (7) years from the Closing Date or such longer time as may be required by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to Law.
(e) Notwithstanding the provisions of this Section 5.4, while the Confidentiality Agreementexistence of an adversarial proceeding between the Parties will not abrogate or suspend the provisions of this Section 5.4, as to such records or other information directly pertinent to such dispute, the Parties may not utilize this Section 5.4 but rather, absent agreement, must utilize the rules of discovery.
Appears in 2 contracts
Sources: Purchase Agreement (Hd Supply, Inc.), Purchase Agreement (Anixter International Inc)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier Closing, Seller shall, for the purpose of enabling Buyer to conduct the Post-Signing Due Diligence, (a) afford Buyer and its Representatives reasonable access to and the reasonable right to inspect, upon reasonable notice and during Seller’s normal business hours, all of the valid termination Real Property, properties, assets, premises, Books and Records, Contracts and other documents and data related to the Business, subject where applicable to the terms of this the Site Access and Indemnification Agreement dated as of June 7, 2018 between Seller and Buyer as the same may be amended or supplemented from time to time; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Effective TimeBusiness as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller to cooperate with Buyer in its investigation of the Business. Without limiting the foregoing, Seller shall, subject to the requirements receipt of applicable Lawall required approvals of Governmental Authorities, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company permit Buyer and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants Representatives to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information conduct Post-Signing Due Diligence with respect to the business, properties and personnel environmental condition of the Company Real Property, including the collecting and analysis of samples of indoor or outdoor air, surface water, groundwater, or surface or subsurface land on, at, in, under or from the Real Property. Any investigation pursuant to this Section 6.02(a) shall be conducted in such manner as Acquiror not to interfere unreasonably with the conduct of the Business or Merger Sub may from time any other businesses of Seller. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty, or agreement given or made by Seller in this Agreement.
(b) From the date hereof until the Closing, Buyer shall, for the purpose of enabling Seller to time reasonably requestconduct the Additional Seller Due Diligence, (iiia) furnish promptly to Acquiror Seller and Merger Sub a copy of each reportits Representatives with such financial, schedule operating and other document filed or received by data and information related to the Company assets and business of Buyer as Seller or any of its Subsidiaries during such period pursuant to Representatives may reasonably request for purposes of reviewing and evaluating Buyer’s financial condition, the requirements financial risks of the federal or state securities Laws transactions contemplated by this Agreement, and the proposed Debt Financing; and (ivb) instruct the Representatives of Buyer to cooperate with Seller in its due diligence investigation with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect Buyer. Any investigation pursuant to this clause (ivSection 6.02(b) shall be conducted in such manner as not to interfere unreasonably with the conduct of any businesses of Buyer. Except as provided in Section 6.22 and Section 8.07(b), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data no investigation by Seller or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege received by Seller shall operate as a waiver or attorney work product protectionotherwise affect any representation, warranty, or agreement given or made by Buyer in this Agreement.
(Bc) would violate an existing confidentiality obligation to any Person or any Law; providedAt the earliest practicable time, however, that in the case of clause (A) and (B), the Company shall, and Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents provide Buyer with the information noted on Exhibit A and reasonable follow- up requests with respect thereto.
(d) Prior to provide receipt of RCA Approval, the parties shall take initial steps to assess necessary integration planning, including those set forth on Section 6.02(d) of the Disclosure Schedules. Following receipt of RCA Approval, the parties shall work together to coordinate and finalize integration planning so as to enable Buyer to operate the Purchased Assets on the Closing Date, including taking the actions set forth on Section 6.02(d)(ii) of the Disclosure Schedules. In connection with such accessintegration planning, inspections, data or other information Seller and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company Buyer shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable appropriate, develop a plan for the transition of customers of the Business to Buyer in the circumstances. No investigation pursuant accordance with a plan intended to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject mitigate to the provisions extent reasonably possible any impact or cost to Seller’s customers and comply with all RCA requirements, including coordination of the Confidentiality Agreementtiming of initial notification of customers, inclusion of materials in Seller’s pre-Closing invoices relating to customer cut-over process, customer data conversion process, and sharing of meter and other technical information.
Appears in 2 contracts
Sources: Asset Purchase and Sale Agreement, Asset Purchase and Sale Agreement
Access to Information. Other than in circumstances in which indemnification is sought pursuant to Article V (in which event the provisions of such Article V shall govern) or for matters related to provision of Tax records (in which event the provisions of the Tax Matters Agreement and Employee Matters Agreement shall govern) and subject to appropriate restrictions for Privileged Information or Confidential Information:
(a) During After the period from Distribution Time, and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Design Reactor for specific and identified Information:
(i) that (x) relates to Design Reactor or the Enterprise Apps Business, as the case may be, prior to the Distribution Time or (y) is necessary for Design Reactor to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Inpixon and/or Design Reactor are parties, Inpixon shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Design Reactor has a reasonable need for such originals) in the possession or control of Inpixon or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Design Reactor; provided that, to the extent any originals are delivered to Design Reactor pursuant to this Agreement or the Ancillary Agreements, Design Reactor shall, at its own expense, return them to Inpixon within a reasonable time after the need to retain such originals has ceased; provided further that, such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the first anniversary of the date of this Agreement continuing until Agreement; provided further that, in the earlier of the valid termination of this Agreement event that Inpixon, in its sole discretion, determines that any such access or the Effective Time, subject to the requirements provision of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to any such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records Information (including Tax Returnsinformation requested under Section 6.3) would violate any Law or Contract with a third party or could reasonably result in the waiver of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestany Privilege, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries Inpixon shall not be obligated to provide such accessInformation requested by Design Reactor;
(ii) that (x) is required by Design Reactor with regard to reasonable compliance with reporting, inspectionsdisclosure, data filing or other information requirements imposed on Design Reactor (including under applicable securities laws) by a Governmental Entity having jurisdiction over Design Reactor, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Inpixon shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Design Reactor has a reasonable need for such originals) in the possession or control of Inpixon or any of its Affiliates or Subsidiaries, but only to the extent that to do such items so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that relate and are not already in the case possession or control of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsDesign Reactor; provided that, to the extent practicable in the circumstances. No investigation any originals are delivered to Design Reactor pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions Ancillary Agreements, Design Reactor shall, at its own expense, return them to Inpixon within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that Inpixon, in its sole discretion, determines that any such access or the provision of Acquiror and Merger Sub related thereto.any such Information (including information requested under Section 6.3) would violate any Law or Contract with a third party or waive any Privilege, Inpixon shall not be obligated to provide such Information requested by Design Reactor; or
(b) All information obtained by Acquiror After the Distribution Time, and subject to compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Inpixon for specific and identified Information:
(i) that (x) relates to matters prior to the Distribution Time or Merger Sub (y) is necessary for Inpixon to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Inpixon and/or Design Reactor are parties, Design Reactor shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Inpixon has a reasonable need for such originals) in the possession or control of Design Reactor or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Inpixon; provided that, to the extent any originals are delivered to Inpixon pursuant to this Agreement or the Ancillary Agreements, Inpixon shall, at its own expense, return them to Design Reactor within a reasonable time after the need to retain such originals has ceased; provided further that, in the event any such access or the provision of any such Information (including information requested under Section 6.03 6.3) would violate any Law or Contract with a third party or waive any Privilege, Design Reactor shall not be subject obligated to provide such Information requested by Inpixon.
(ii) that (x) is required by Inpixon with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Inpixon (including under applicable securities laws) by a Governmental Entity having jurisdiction over Inpixon, or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as applicable, Design Reactor shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Inpixon has a reasonable need for such originals) in the possession or control of Design Reactor or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Inpixon; provided that, to the extent any originals are delivered to Inpixon pursuant to this Agreement or the Ancillary Agreements, Inpixon shall, at its own expense, return them to Design Reactor within a reasonable time after the need to retain such originals has ceased.
(c) Each of Inpixon and the CXApp Parties shall inform their respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the other Party’s Confidential Information or other information provided pursuant to this Article VI of their obligation to hold such information confidential in accordance with the provisions of the Confidentiality this Agreement.
Appears in 2 contracts
Sources: Separation and Distribution Agreement (Inpixon), Separation and Distribution Agreement (KINS Technology Group, Inc.)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries to, : (i) use its Commercially Reasonable Efforts to give Acquiror Buyer and Merger Sub and their authorized officersits Representatives, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular ordinary business hours and upon reasonable notice) , reasonable access to such employeesall books, officesrecords, data centers plans, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of properties included in the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, Purchased Assets; (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information in the possession of Seller with respect to the business, properties and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iii) furnish promptly Buyer with all such other information in the possession of Seller as shall be reasonably necessary to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by enable Buyer to verify the Company or any of its Subsidiaries during such period pursuant to the requirements accuracy of the federal representations and warranties of Seller contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client or state securities Laws other privilege, (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply and (ivD) Seller shall not be required to supply Buyer with any information with respect to the matters set forth on Section 6.03(a) Jointly Owned Stations to which Seller is not entitled pursuant to the terms of the Disclosure LetterJointly Owned Stations Operating Agreements. Notwithstanding anything herein to the contrary, consult prior to the Closing Date, Buyer shall not have the right to perform or conduct, or cause to be performed or conducted, any environmental sampling or testing at, in, on or underneath any Jointly Owned Station.
(b) All information furnished to or obtained by Buyer and Buyer's Representatives pursuant to this Section 6.1 shall be Proprietary Information and shall be kept confidential in accordance with Acquiror the terms of the Confidentiality Agreement. Nothing in this Section 6.1 is intended to or shall be deemed to amend, supplement or otherwise modify the obligations of Buyer, its Representatives or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(c) For a period of seven (7) years from and after the Closing Date, each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets or the Excluded Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.1(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period, such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at such other Party's cost and expense, to segregate and remove such books and records as such other Party may select.
(d) Buyer shall not, prior to the Closing Date, contact any customer, vendor, supplier or employee of, or any other Person having business dealings with, Seller or its Affiliates with respect to any decisions aspect of a legal nature related thereto and prior to the Company Purchased Assets or its Subsidiaries responding to the transactions contemplated hereby or by any request or submitting any documentation in response theretoAdditional Agreement, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Atlantic City Electric Co), Purchase and Sale Agreement (Delmarva Power & Light Co /De/)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries to, : (i) give Acquiror Buyer and Merger Sub and their authorized officersits Representatives, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular ordinary business hours and upon reasonable notice) , reasonable access to such employeesall books, officesrecords, data centers plans, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) properties in the possession of Seller included in the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, Purchased Assets; (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information in the possession of Seller with respect to the business, properties and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iii) furnish promptly Buyer with all such other information in the possession of Seller as shall be reasonably necessary to Acquiror enable Buyer to verify the accuracy of the representations and Merger Sub warranties of Seller contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a copy waiver of each reportthe attorney-client or other privilege, schedule and other document filed (C) Seller need not supply Buyer with any information which Seller is under a legal or received by the Company or any of its Subsidiaries during such period pursuant contractual obligation not to supply. Notwithstanding anything herein to the requirements of contrary, prior to the federal Closing Date, Buyer shall not have the right to perform or state securities Laws conduct, or cause to be performed or conducted, any environmental sampling or testing at, in, on or underneath any Wholly Owned Station, and Seller shall only furnish or provide such access to Employee personnel records and files to the extent permitted by applicable Law and to the extent that such records and files pertain to the following: (i) skill and development training; (ii) seniority histories; (iii) salary and benefit information; (iv) Occupational, Safety and Health Administration reports; and (v) active medical restriction forms.
(b) All information furnished to or obtained by Buyer and Buyer's Representatives pursuant to this Section 6.2 shall be Proprietary Information and shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Nothing in this Section 6.2 is intended to or shall be deemed to amend, supplement or otherwise modify the obligations of Buyer, its Representatives or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(c) For a period of seven (7) years from and after the Closing Date, each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferred Employee Records, in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets or the Excluded Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.2(c). If the matters set forth on Section 6.03(aParty in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period, such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at such other Party's cost and expense, to segregate and remove such books and records as such other Party may select.
(d) of Buyer shall not, prior to the Disclosure LetterClosing Date, consult with Acquiror contact any customer, vendor, supplier or employee of, or any other Person having business dealings with, Seller or its Affiliates with respect to any decisions aspect of a legal nature related thereto and prior to the Company Purchased Assets or its Subsidiaries responding to the transactions contemplated hereby or by any request or submitting any documentation in response theretoAdditional Agreement, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Atlantic City Electric Co), Purchase and Sale Agreement (Delmarva Power & Light Co /De/)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeGP US may, subject prior to the requirements of applicable LawClosing Date, the Company shallthrough its Representatives, review, and the Sellers and RWD Canada shall cause its Subsidiaries to, provide reasonable assistance with respect to review of: (i) give Acquiror the Acquired Assets; (ii) the Leased Real Property; (iii) the operating information and Merger Sub data relating to the Business and their authorized officers, employees, accountants, investment bankers, counsel such other information relating to the financial and legal condition of the Business as may be necessary to familiarize itself with the Acquired Assets and the conduct of the Business; and (iv) and other information and access to the books and records and work papers and employees and accountants of Sellers, RWD Canada and RWD Colombia as may be reasonably requested by GP US in connection with auditing the financial statements relating to the three (3) most recent fiscal years of Sellers, RWD Canada and RWD Colombia and to any interim periods after such fiscal year, as are specified in Rule 3-05(b) of Regulation S-X (17 CFR 210) or otherwise required to be disclosed by GP US pursuant to applicable securities Laws. Sellers, RWD Canada and RWD Colombia shall be permitted to redact any such tax books and records and work papers to exclude information not related to the Business. Such review shall occur only upon reasonable notice by GP US at times reasonably agreed upon by Sellers, RWD Canada, and RWD Colombia and GP US and shall be conducted in a manner that does not unreasonably interfere with the operations of the Business. Sellers, RWD Canada and RWD Colombia shall permit GP US and its Representatives to have reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) employees of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and Affiliates within its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) control who can furnish Acquiror and Merger Sub GP US with such financial and operating data and other information with respect to the businessAcquired Assets, properties the assets of RWD Colombia and personnel of the Company Business as Acquiror or Merger Sub may GP US from time to time reasonably requestrequests. The foregoing shall not require Sellers, (iii) furnish promptly RWD Canada or RWD Colombia to Acquiror and Merger Sub a copy permit any inspection, or to disclose any information, that in the reasonable judgment of each reportSellers, schedule and other document filed RWD Canada or received by RWD Colombia is reasonably likely to result in the Company disclosure of any trade secrets of any third party or violate any of its Subsidiaries during such period pursuant to the requirements of the federal Sellers’, RWD Canada’s or state securities Laws and (iv) RWD Colombia’s obligations with respect to confidentiality, provided that Sellers, RWD Canada and RWD Colombia shall notify GP US if Sellers, RWD Canada or RWD Colombia limits an inspection or does not disclose any information on such basis. All requests for information made pursuant to this Section 8.11 shall be directed to such Person as may be designated by Sellers and all information obtained by GP US as a result of such review shall be held in strict confidence in accordance with the matters set forth on Non-Disclosure Agreement. GP US shall conduct all inspections, testing and other information gathering described in this Section 6.03(a) 8.11 at GP US’s sole cost and expense and with a standard of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror care that would be utilized by a reasonable opportunity to review any such submissionand prudent person and that GP US utilizes in the ordinary course of its business.
(b) Any and all information gathered or obtained by the parties or their or authorized Representatives as a result of, response or related documentation and provide comments; provided that with respect to this clause (iv)in connection with, the Company information gathering described in this Section 8.11 or otherwise under this Agreement (including after the Closing) shall be kept strictly confidential and its Subsidiaries shall not be revealed to, or discussed with, any person other than the authorized Representatives of Sellers, RWD Canada or GP US who agree to settle or provide any remedy comply with regard to any such matters without the Non-Disclosure Agreement and the provisions of this Section 8.11 except with the prior written consent of Acquirorthe disclosing party or as required by Law (including in connection with a legal dispute between the parties). In the event the Closing is not consummated, which consent such information shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information returned to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege disclosing party or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that destroyed in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance accordance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or and the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Non-Disclosure Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Gp Strategies Corp), Asset Purchase Agreement (Gp Strategies Corp)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid Closing or the termination of this Agreement or the Effective TimeAgreement, subject to the requirements of applicable Law, the Company shall, Seller shall afford Buyer and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized respective officers, employees, accountants, investment bankerscounsel, counsel agents and other Representatives representatives, reasonable access (during regular normal business hours upon reasonable noticeprior notice to (i) to such employeesall of the properties, offices, data centers and other facilities at reasonable times and to such books, Contractscontracts, commitments and records (including Tax Returns) of the Company Business and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestAcquired Assets, (ii) furnish Acquiror all Business Employees and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant auditor's work papers relating to the requirements Business Financial Statements.
(b) Buyer acknowledges and agrees that there shall be no invasive inspection or testing of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters Leased Real Property without the prior written consent in each instance of AcquirorSeller and the lessor of such Leased Real Property, which consent Buyer acknowledges may be withheld in the sole and absolute discretion of such lessor. Buyer further agrees that neither any such lessor nor Seller shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide consent to any testing of the soil or groundwater, in, on or under any Leased Real Property. Subject to the foregoing and in addition to such accessother conditions and requirements as may be imposed by the lessor of the Leased Real Property, in connection with any approved entry by Buyer or its agents, consultants, employees or contractors onto the Leased Real Property, Buyer shall notify Seller in writing of its intention or the intention of its agents or representatives to undertake any inspection at least two business days prior to such intended inspection which notice shall include the identity of the company or persons who will perform the inspections and the proposed scope of such inspections. Buyer shall conduct such entry and any inspection in connection therewith so as to minimize any interference with Seller's or Tekelec Japan's operations, and Buyer shall bear the cost of all such inspections. At Seller's option, Seller or Seller's agents may be present for any such inspections. Buyer shall indemnify and hold harmless Seller from and against any liability, claims or expenses (including, without limitation, mechanic's or construction liens and/or reasonable attorneys' fees), damages or injuries arising out of or resulting from the inspection of the Leased Real Property by Buyer or its agents, contractors, consultants or employees, and at the conclusion of its inspections, data Buyer shall repair any damage to the Leased Real Property caused by its inspections. In addition, prior to any entry, Buyer will obtain, maintain and provide Seller, or shall cause any consultant, contractor or other information person entering the Leased Real Property to obtain, maintain and provide Seller, with proof of comprehensive general liability insurance in the extent that amount of at least $2,000,000 combined, single limit coverage, naming Seller and the lessor of the Leased Property as additional insureds and with coverages reasonably satisfactory to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person Seller and the lessor. The foregoing indemnity provision will survive the Closing or any Law; provided, however, that in the case termination of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoAgreement.
(bc) All information obtained by Acquiror or Merger Sub pursuant to Between the date of this Section 6.03 shall be subject to Agreement and the provisions earlier of the Confidentiality Closing or the termination of this Agreement, Buyer shall afford Seller and its officers, employees, accountants, counsel, agents and other representatives, reasonable access during normal business hours upon reasonable prior notice to (i) all of the properties, books, contracts, commitments and records of Buyer and its subsidiaries and (ii) all officers of Buyer and its subsidiaries.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Catapult Communications Corp), Asset Purchase Agreement (Tekelec)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries toRestricted Period, (i) give Acquiror Seller shall afford Buyer and Merger Sub and their authorized its officers, authorized employees, accountants, investment bankers, counsel and other Representatives authorized representatives reasonable access (during regular normal business hours upon reasonable notice) to such employeesthe properties, officesincluding Inventory, data centers and other facilities at reasonable times and to such books, Contractsrecords and personnel relating to the Business Assets, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub Buyer may reasonably request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege or third-party confidentiality obligation), and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent Buyer shall not be unreasonably withheld contact any Business Employee or delayedany suppliers to or customer of Seller or the Business in connection with or pertaining to any subject matter of this Agreement. Notwithstanding the foregoing, during the Company Restricted Period, Seller shall use commercially reasonable efforts to arrange for Buyer to contact (with a representative of Seller present on all such conference calls, meetings or other interactions) certain agreed upon suppliers and customers of the Business and certain Business Employees to discuss matters pertaining to this Agreement and the transactions contemplated hereby. In the event Seller is unable, after Seller has used its commercially reasonable efforts, to arrange for Buyer to make contact with an agreed upon customer, Buyer may contact such agreed upon customer, without further consent from Seller, to discuss matters pertaining to this Agreement and the transactions contemplated hereby (subject in all respects to the restrictions set forth in Section 5.9).
(b) During the Restricted Period, (i) Buyer shall afford Seller and its Subsidiaries shall not be obligated to provide such accessofficers, inspectionsauthorized employees, data or accountants, counsel and other information authorized representatives reasonable access during normal business hours to the extent properties, books, records and personnel of Buyer, as Seller may reasonably request (subject to any limitations that are reasonably required to do so (A) could reasonably be expected to jeopardize an preserve any applicable attorney-client privilege or attorney work product protectionthird-party confidentiality obligation), and (ii) without the prior written consent of Buyer, Seller shall not contact any employees or (B) would violate an existing confidentiality obligation any suppliers to or customers of Buyer in connection with or pertaining to any Person subject matter of this Agreement.
(c) After the Closing Date, Seller and Buyer shall provide to each other and to their respective officers, authorized employees, accountants, counsel and other authorized representatives, upon reasonable request (subject to any limitations that are reasonably required to preserve any applicable attorney-client privilege or any Law; provided, however, that in the case of clause (A) and (Bthird-party confidentiality obligation), reasonable access for inspection and copying of all the Company shallBusiness Records and any other information existing as of the Closing Date and exclusively relating to the Business Assets or the Transferred Employees (subject to applicable privacy laws), and shall cause its Subsidiaries make their respective personnel reasonably available for interviews, depositions and testimony in any legal matter concerning transactions contemplated by this Agreement, and as otherwise may be necessary or desirable to enable the Party requesting such assistance to: (i) comply with any reporting, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data filing or other requirements imposed by any Governmental Entity, including filing any Tax Returns and responding to Tax audits or Tax authority disputes with respect to the Business Assets and the Transferred Employees; (ii) assert or defend any claims or allegations in any litigation or arbitration or in any administrative or legal proceeding other than claims or allegations that one Party to this Agreement has asserted against the other; or (iii) subject to clause (ii) above, perform its obligations under this Agreement. The Party requesting such information or assistance shall reimburse the other Party for all reasonable and necessary out-of-pocket costs and expenses incurred by such party in providing such information and take in rendering such other action (such as the redaction of identifying or confidential informationassistance. The access to files, entry into a joint defense agreement or other agreement or books and records contemplated by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates 5.12 shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror during normal business hours and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 upon reasonable prior notice and shall be subject to such reasonable limitations as the provisions Party having custody or control thereof may impose to preserve the confidentiality of information contained therein.
(d) Buyer shall preserve copies of all Business Contracts for up to seven (7) years after the Confidentiality AgreementClosing Date, and all other Business Records for up to five (5) years after the Closing Date.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Peco Ii Inc), Asset Purchase Agreement (Peco Ii Inc)
Access to Information. (a) During the period from the date of this Agreement continuing Subject to Section 5.4, until the earlier of the valid Closing and the termination of this Agreement or in accordance with the Effective Timeterms of ARTICLE VII, subject to the requirements each of applicable Law, the Company shall, Seller Parent and each Seller shall cause its Subsidiaries toRepresentatives to afford Representatives of Buyer reasonable access during normal business hours, (i) give Acquiror to the extent permitted by applicable Law and Merger Sub in accordance with the reasonable procedures established by Seller Parent or such Seller, in furtherance of the consummation of the Sale and their authorized the other transactions contemplated by this Agreement, to the officers, directors, employees, accountantsMSOs, investment bankersproperties, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers offices and other facilities at reasonable times of the Business and to such books, Contracts, commitments the Acquired Assets (including all Business Real Property) and the books and records relating thereto (in each case solely to the extent relating to the Business, the Acquired Assets, Assumed Liabilities or Acquired Entities or in connection with the Separation Activities); provided that such access shall only be upon the reasonable advance request of Buyer and shall not unreasonably disrupt personnel, operations and properties of the Business; provided, further, that Seller Parent and each Seller shall make available, or cause its Subsidiaries to make available, to the extent required or requested by Buyer, Business Employee or Former Business Employee personnel files or other information relating to the Business Employees and Former Business Employees that is relevant to any Acquired Entity Plan (provided that, unless required by Buyer to satisfy its obligations under Section 5.2, no Seller shall make, or cause to be made, available medical records, workers’ compensation records or the results of any drug testing; and that Buyer shall indemnify, defend and hold each Seller and its Affiliates (including Tax Returnsthe other Subsidiaries of such Seller (other than Acquired Entities)) harmless from any Liabilities arising out of or relating to Buyer’s and its Affiliates’ use of such personnel files). In exercising its rights under this Section 5.3(a), Buyer shall conduct itself so as not to unreasonably interfere in the conduct of the Company Business prior to the Closing. Buyer acknowledges and agrees that any contact or communication by Buyer and its Subsidiaries as Acquiror Representatives with officers, employees or Merger Sub may agents of the Business hereunder shall be arranged, and, if so determined in Seller Parent’s reasonable judgement, supervised (provided that Buyer shall have the right to reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and that such other information as Acquiror contact or Merger Sub may reasonably communication be unsupervised and, upon such request, (ii) furnish Acquiror and Merger Sub with Seller Parent or such financial and operating data and other information applicable Seller shall not unreasonably withhold, condition or delay its consent), by Representatives of the applicable Seller or Seller Parent, unless such Seller or Seller Parent otherwise expressly consents in writing with respect to any specific contact. Notwithstanding anything to the businesscontrary set forth in this Agreement but subject to Sellers’ obligations pursuant to Section 5.22, properties and personnel no Seller nor any Affiliates of any Seller (including the Company as Acquiror or Merger Sub may from time Acquired Entities) shall be required to time reasonably request, (iii) furnish promptly disclose to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company Buyer or any of its Subsidiaries during such period pursuant Representatives any: (i) information to the requirements extent: (A) relating to any acquisition, sale or divestiture process conducted by such Seller or its Affiliates for the Business or such Seller’s or its Affiliates’ (or their Representatives’) evaluation of the federal Business in connection therewith, or state securities Laws and (iv) with respect to any information concerning the matters set forth on Section 6.03(a) of the Disclosure LetterSale Process, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response theretoeach case, provide Acquiror a reasonable opportunity to review any such submissionincluding projections, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data financial or other information to the extent that to do relating thereto; (B) doing so (A) could reasonably be expected to jeopardize an violate any Contract (provided that each Seller shall use reasonable efforts to obtain consents or waivers from third parties under any such Contract in order to disclose such information to Buyer (it being understood that in no event shall any Seller or its Affiliates be obligated to pay any consent fee or other consideration in connection with their efforts to obtain such consents or waivers)) or Law to which any Seller or any of its Affiliates (including the Acquired Entities) is a party or is subject or which it believes in good faith would reasonably be expected to result in a loss of the ability to successfully assert a claim of attorney-client privilege or attorney work product protection, privilege; or (BC) would violate an existing confidentiality obligation to if any Person Seller or any Lawof its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto; provided, however, that in the case event the restrictions of this clause (Ai) and (B)apply, such Seller shall provide Buyer with a reasonable description of the Company shallinformation not provided, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or extent permitted by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, such Seller shall cooperate in good faith to design and shall cause its Subsidiaries to, use reasonable best efforts implement alternative disclosure arrangements to institute appropriate substitute disclosure arrangements, enable Buyer to evaluate any such information without resulting in any such violation; or (ii) Tax Return or any other information relating to Taxes or Tax Returns (other than information relating solely to the extent practicable Business and the Acquired Entities). Notwithstanding anything herein to the contrary, Buyer shall not have the right to perform or conduct, or cause to be performed or conducted, any environmental sampling or testing at, in, on or underneath any Business Real Property prior to the Closing without the prior written consent of Sellers, which consent shall not be unreasonably withheld, delayed or conditioned, if such sampling or testing is reasonably requested by an insurance underwriter in connection with the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoEnvironmental Insurance Policy.
(b) All Except as provided otherwise in Section 5.16, Buyer shall retain the books, records, documents, instruments, accounts, correspondence, writings, evidence of title and other papers relating to the Business, the Acquired Entities, the Assumed Liabilities and the Acquired Assets in its possession or the possession of its Affiliates until seven (7) years following the Closing Date or such longer period as may be required by Law or applicable court order.
(c) After the Closing, upon reasonable advance written request, Buyer shall furnish or cause to be furnished to Sellers and their respective Representatives reasonable access, during normal business hours, to employees of the Business (including to prepare and appear as witnesses) and such information obtained by Acquiror as existing on the Closing Date (including the right to make copies), cooperation and assistance relating to the Business and the Acquired Entities as is necessary for any reasonable business purpose, including insurance matters, financial reporting and accounting matters, the preparation and filing of any Tax Return, the defense of any Tax Proceeding, in connection with any disclosure obligation or Merger Sub the defense of any Action (including any Action that constitutes a Retained Liability, but excluding Actions between any Buyer Indemnified Parties and Seller Indemnified Parties). Notwithstanding anything to the contrary set forth in this Agreement, neither Buyer nor any of its Affiliates shall be required to disclose to any Seller or any of its Representatives any information to the extent: (A) doing so could violate any Contract (provided that Buyer shall use reasonable efforts to obtain consents or waivers from third parties under any such Contract in order to disclose such information to any Seller (it being understood that in no event shall Buyer or its Affiliates be obligated to pay any consent fee or other consideration in connection with their efforts to obtain such consents or waivers)) or Law to which Buyer or any of its Affiliates is a party or is subject or which it believes in good faith would reasonably be expected to result in a loss of the ability to successfully assert a claim of attorney-client privilege or (B) if Buyer or any of its Affiliates, on the one hand, and any Seller or any Affiliate of any Seller, on the other hand, are adverse parties in a litigation and such information is reasonably pertinent thereto. In exercising its rights under this Section 5.3(c), each Seller shall conduct itself so as not to unreasonably interfere in the conduct of the Business. Sellers shall reimburse Buyer for reasonable out-of-pocket costs and expenses incurred in assisting any Seller pursuant to this Section 6.03 5.3(c).
(d) During the period between the date hereof and the Closing Date, Seller Parent and Sellers and their respective Representatives shall be subject cooperate with Buyer and its Representatives with respect to providing information and making determinations with respect to the provisions identification of, and the potential impact and liabilities under Section 280G of the Confidentiality Code associated with, Business Employees and Former Business Employees who are or may be determined to be “disqualified individuals” (within the meaning of Section 280G of the Code) as a result of, or due to, the transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Marathon Petroleum Corp)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawPre-Closing Period, the Company shall, shall afford Acquirer and shall cause its Subsidiaries to, Representatives reasonable access during business hours (including remote access) to (i) give Acquiror and Merger Sub and their authorized officersthe Company’s properties, employeespersonnel, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, ContractsContracts and records, commitments (ii) all other information concerning the business and records (including Tax Returns) properties of the Company as Acquirer may reasonably request, and the Company shall make available to Acquirer and its Subsidiaries as Acquiror or Merger Sub may reasonably request Representatives correct and instruct complete copies of, including all records and workpapers relating to, the Company’s (A) internal financial statements, (B) Tax Returns, Tax elections and its Subsidiaries’all other records and workpapers relating to Taxes, (C) independent public accountants a schedule of any deferred intercompany gain or loss with respect to provide access transactions to their work papers which the Company has been a party and such (D) receipts for any Taxes paid to non-U.S. Tax Authorities, and (iii) all other information concerning the business and properties of the Company as Acquiror or Merger Sub Acquirer may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect including as may be requested to facilitate the business, properties and personnel integration planning of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by Company’s business with Acquirer’s business following the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawClosing; provided, however, that (x) any such access shall be conducted in a manner not to unreasonably interfere with the case businesses or operations of clause the Acquired Companies; (Ay) and (B)the Acquired Companies shall not be required to take any action which would adversely affect the ability to assert attorney-client, attorney work product or other privilege; provided that the Company shall, and parties hereto shall cause its Subsidiaries to, use commercially reasonable efforts to obtain agree upon a method of disclosure which would not compromise any such privilege; and (z) the Acquired Companies shall not be required consents to provide supply any information which (1) such access, inspections, data Person is under a contractual or other legal obligation not to supply; provided that the parties shall use commercially reasonable efforts to agree upon a method of disclosure which would not compromise such contractual or legal obligation or (2) is a trade secret or commercially sensitive. Any disclosure during any investigation by Acquirer and its Representatives shall not constitute an enlargement of the representations or warranties of the Company or the Shareholders beyond those specifically set forth in this Agreement. All information and take such other action access given to Acquirer and its Representatives shall be subject to the terms and conditions of the Confidentiality Agreement.
(such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely b) Subject to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Applicable Law, and otherwise during the Pre-Closing Period, the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts confer from time to institute appropriate substitute disclosure arrangements, time as requested by Acquirer with one or more Representatives of Acquirer to the extent practicable discuss any material changes or developments in the circumstances. operational matters of the Company and the general status of the ongoing operations of the Company.
(c) No information or knowledge obtained by Acquirer during the pendency of the Transactions in any investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates 6.8 shall affect or be deemed to modify any representation, warranty, covenant covenant, agreement, obligation or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretocondition set forth herein.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Share Purchase Agreement (Applovin Corp), Share Purchase Agreement (Applovin Corp)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, Seller Group shall, subject to the requirements of any restrictions as to confidentiality applicable to Seller Group whether by Law, the Company shall, and shall cause its Subsidiaries toagreement or contract, (i) give Acquiror Buyer and Merger Sub and their its authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers work papers, personnel, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) properties of the Company Business and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s accountants; (ii) permit Buyer and its Subsidiaries’) independent public accountants authorized representatives to provide access to their work papers make such copies and such other information inspections thereof as Acquiror or Merger Sub any of them may reasonably request; (iii) permit Buyer and its authorized representatives to conduct an environmental inspection of the Business Real Property (including a “Phase I” site assessment which may also include interior wipe sampling), provided that Buyer and its representatives shall have no right to undertake any soil or groundwater investigation; and (iiiv) cause the officers of Seller Group to furnish Acquiror Buyer and Merger Sub its authorized representatives with such financial and operating data and other information with respect to the business, business and properties and personnel of the Company Business as Acquiror or Merger Sub any of them may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that any such access shall be conducted during normal business hours under the supervision of Seller Group’s personnel and in such a manner as to maintain the case confidentiality of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or and the conditions transactions contemplated hereby and not interfere unreasonably with the normal operations of Acquiror and Merger Sub related theretothe Business, except as otherwise contemplated by this Agreement.
(b) All From and after the date of this Agreement and continuing until the Buyer Survival Date, all Seller Group Confidential Information (as hereinafter defined) shall (i) be held by Buyer with the same degree of skill and care that it would exercise in similar circumstances in carrying out its own business to prevent the disclosure or accessibility to others of such information obtained and (ii) shall not be revealed, reported, published, disclosed or transferred to any person or entity (other than the Seller Group). For purposes of this Agreement, “Seller Group Confidential Information” means any non-public information related to the Business furnished or provided by Acquiror Seller Group or Merger Sub its affiliates to Buyer; provided, however, that Seller Group Confidential Information shall not be deemed to include (A) information related to the Business that was already publicly known and in the public domain prior to the time of its initial disclosure to Buyer or (B) any information related to the Seller Group that is or becomes available to Buyer or its affiliates after the Closing from a source that Buyer reasonably believes not to be under an obligation of confidentiality with respect to such information; provided, further, Buyer may reveal, report, disclose or transfer any Seller Group Confidential Information pursuant to a subpoena or order issued by a court of competent jurisdiction or by a judicial or administrative or legislative bodies or committee. For purposes of this Section 6.03 shall be subject Agreement, the “Buyer Survival Date” means (x) the Closing Date in respect of all Seller Group Confidential Information relating to Transferred Intellectual Property; (y) two (2) years following the provisions Closing Date in respect of all other Seller Group Confidential Information other than Seller Group Confidential Information relating to Intellectual Property; and (z) five (5) years following the Confidentiality AgreementClosing Date for Seller Group Confidential Information relating to Intellectual Property other than Transferred Intellectual Property; or in any case, the date on which such Seller Group Confidential Information becomes publicly known through no action or inaction of Buyer or any of its Affiliates.
Appears in 2 contracts
Sources: Asset Purchase Agreement (3com Corp), Asset Purchase Agreement (Utstarcom Inc)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawClosing Date, the Company shallSellers will, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror the Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other the Buyer Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at and properties constituting the Purchased Assets to which the Buyer is not denied access by law; (ii) permit the Buyer to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of inspections thereof as the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) furnish Acquiror and Merger Sub the Buyer with such financial and operating data and other information with respect to the business, properties and personnel of Purchased Assets as the Company as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; (iiiiv) furnish promptly to Acquiror and Merger Sub the Buyer a copy of each material report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) them with respect to the matters set forth on Section 6.03(a) of Purchased Assets with the Disclosure LetterSEC, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company MDPU, RIPUC, NHPUC, VTPSB, NRC or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawFERC; provided, however, that in the case of clause (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) the Sellers shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (B)C) the Sellers need not supply the Buyer with any information which the Sellers are under a legal obligation not to supply. Notwithstanding anything in this Section 7.2 to the contrary, (i) the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to Sellers will only furnish or provide such access, inspections, data or other information access to Transferring Employee Records and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) personnel and medical records as is necessary required by law, legal process or subpoena and (ii) the Buyer shall not have the right to provide such accessperform or conduct any environmental sampling or testing at, data in, on, or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise underneath the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoPurchased Assets.
(b) The Buyer and Sellers acknowledge that Buyer is a Representative of U.S. Generating Company under the terms of the Confidentiality Agreement. All information furnished to or obtained by Acquiror or Merger Sub the Buyer, U.S. Generating Company and the Buyer Representatives pursuant to this Section 6.03 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Proprietary Information" (as defined in the Confidentiality Agreement).
(c) For a period of ten years after the Closing Date, each party and their representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records or other personnel and medical records required by law, legal process or subpoena, in the possession of the other party or parties to the extent that such access may reasonably be required by such party in connection with the Assumed Obligations or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the party or parties in possession of such books and records upon receipt of reasonable advance notice and during normal business hours. The party or parties exercising this right of access shall be solely responsible for any costs or expenses incurred by it or them pursuant to this Section 7.2(c). If the party or parties in possession of such books and records shall desire to dispose of any such books and records upon or prior to the expiration of such ten-year period, such party or parties shall, prior to such disposition, give the other party or parties a reasonable opportunity at such other party's or parties' expense, to segregate and remove such books and records as such other party or parties may select.
(d) The Sellers agree to use best efforts to cause ▇▇▇▇ not to release any Person (other than the Buyer) from any confidentiality agreement now existing with respect to the Purchased Assets, or waive or amend any provision thereof.
(e) Notwithstanding the terms of the Confidentiality Agreement and Section 7.2(b) above, the parties agree that prior to the Closing the Buyer may reveal or disclose Proprietary Information to any other Persons in connection with financing, and risk management if reasonably necessary, of or with respect to the Purchased Assets, and to such Persons with whom the Buyer expects it may have business dealings regarding the Purchased Assets from and after the Closing Date, and, to the extent that Sellers consent, which consent shall not be unreasonably withheld, existing and potential customers and suppliers. The parties further agree that clause (c) of the first sentence of the second paragraph of the Confidentiality Agreement is terminated, and of no further force or effect.
(f) Except as required by law, unless otherwise agreed to in writing by the Buyer, for a period commencing on the Closing Date and terminating three years after such date the Sellers shall keep (i) all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any Person other than "Sellers' Representatives" (as defined below) who are actively and directly participating in the transactions contemplated hereby or who otherwise need to know the Proprietary Information for such purpose and to cause those Persons to observe the terms of this Section 7.2(f) and (ii) not to use Proprietary Information for any purpose other than consistent with the terms of this Agreement. The Sellers shall continue to hold all Proprietary Information according to the same internal security procedures and with the same degree of care regarding its secrecy and confidentiality as currently applicable thereto. The Sellers shall notify the Buyer of any unauthorized disclosure to third parties that it discovers, and shall endeavor to prevent any further such disclosures. The Sellers shall be responsible for any breach of the terms of this Section 7.2(f) by the Sellers or the Sellers' Representatives. After the Closing Date, in the event that the Sellers are requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary Information, or any other information concerning the Purchased Assets, or the transactions contemplated hereby, the Sellers shall provide the Buyer with prompt notice of such request or requirement in order to enable the Buyer to seek an appropriate protective order or other remedy, to consult with the Sellers with respect to taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Section 7.2(f). The Sellers agree not to oppose any action by the Buyer to obtain a protective order or other appropriate remedy after the Closing Date. In the event that no such protective order or other remedy is obtained, or that the Buyer waives compliance with the terms of this Section 7.2(f), the Sellers shall furnish only that portion of the Proprietary Information which the Sellers are advised by counsel is legally required. In any such event the Sellers shall use their reasonable best efforts to ensure that all Proprietary Information and other information that is so disclosed will be accorded confidential treatment.
(g) The parties agree that the last sentence of the third paragraph of the Confidentiality Agreement shall not apply with respect to Proprietary Information that is included in the Purchased Assets.
(h) The parties agree that the Confidentiality Agreement will terminate, without further act or evidence by the parties, upon consummation of the Closing.
(i) The Sellers shall use best efforts to cause ▇▇▇▇ to execute appropriate written evidence of its agreement to the terms of this Section 7.2 insofar as the Confidentiality Agreement is amended or superseded hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New England Electric System), Asset Purchase Agreement (Pg&e Corp)
Access to Information. (a) During In addition to the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or rights granted by Sections 6.1(b), (c) and (d), between the Effective TimeDate and the Closing Date, Seller will, and will use Commercially Reasonable Efforts to cause NMC to, during ordinary business hours, upon reasonable notice and subject to compliance with all applicable NRC rules and regulations and other applicable Laws and subject to approval in advance by the requirements of applicable Law, the Company shall, and Seller's Agent(s) which approval shall cause its Subsidiaries to, not be unreasonably withheld or delayed
(i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Buyer's Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall management personnel engaged in the operation of the Included Assets and all books, officesdocuments, data centers records, plants, offices and other facilities at and properties constituting the Included Assets;
(ii) permit Buyer to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties Included Assets and personnel of the Company Palisades Employees and the Big Rock ISFSI Employees as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer a copy of each report, schedule and or other document filed or received by it since the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) date hereof with respect to the matters set forth on Section 6.03(aIncluded Assets with the NRC, FERC or any other Governmental Authority having jurisdiction over the Included Assets; provided, however, that (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Disclosure LetterIncluded Assets, consult (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (C) Seller need not supply Buyer with Acquiror any information that Seller is legally prohibited from supplying. Seller will use its Commercially Reasonable Efforts to cause NMC to provide Buyer or Buyer's Representatives with access to the Transferred Employee Records that it has, but Seller shall not be required to provide or cause to be provided access to other employee records or medical information unless required by Law or specifically authorized by the affected employee. Notwithstanding anything in this Section 6.2 to the contrary, Seller shall only provide or cause to be provided such access to Transferred Employee Records and personnel and medical records as is permitted by Law or required by legal process or subpoena. In addition, Seller will use Commercially Reasonable Efforts to cause NMC to provide Buyer or Buyer's Representatives with access to NMC personnel engaged in the supervision, operation, maintenance or otherwise supporting the Included Assets. To the extent not prohibited by applicable Law, Seller shall cause NMC to deliver in a timely manner to Buyer all documents, electronic files and records in a format sufficient (as reasonably determined by Buyer) to facilitate the anticipated Closing. Without limiting the generality of the foregoing, four (4) weeks prior to the anticipated Closing Date, (A) Seller shall provide, or cause NMC to provide, to Buyer a list of the Palisades Employees and Big Rock ISFSI Employees anticipated to become Transferred Employees, and (B) Seller shall cooperate, and shall cause NMC to cooperate, with Buyer to enable Buyer to document the transfer of the Transferred Employees according to Buyer's or Buyer's Affiliate's standard practices and employment prerequisites.
(b) Buyer and Seller acknowledge that all information furnished to or obtained by Buyer or Buyer's Representatives pursuant to either Section 6.1 or this Section 6.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as Proprietary Information.
(c) For a period of five (5) years following the Closing Date (or such other date as the Parties may agree in writing), and in the case of books and records relating to the Decommissioning Funds, until the completion of Decommissioning, and subject to all applicable NRC rules and regulations, each Party and its respective Representatives shall have reasonable access to all of the Business Books and Records, including all Transferred Employee Records or other personnel and medical records required to be made available by Law, legal process or subpoena, in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities and Obligations or the Excluded Liabilities, or other matters relating to or affected by the operation of the Included Assets. Such access shall be afforded by the Party in possession of such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any such books and records prior to the expiration of the applicable time period specified in this Section 6.2(c), such Party shall, prior to such disposition, give the other Party a reasonable opportunity at such other Party's expense, to segregate and remove such books and records as such other Party may select. Notwithstanding the foregoing, the right of access to medical records and other confidential employee records shall be subject to all applicable Laws.
(d) Seller agrees (i) not to release any Person (other than Buyer) from any confidentiality agreement now existing with respect to the Included Assets, or waive or amend any decisions provision thereof, and (ii) to assign at the Closing any rights arising under any such confidentiality agreement (to the extent assignable) to Buyer. Notwithstanding the foregoing, Seller agrees and shall use Commercially Reasonable Efforts to cause NMC to agree that following the Closing, no Transferred Employee shall be subject to any confidentiality, non-solicitation or non-competition obligation for the benefit of a legal nature related thereto Seller or its Affiliates or NMC.
(e) Notwithstanding the terms of the Confidentiality Agreement and Section 6.2(b) above, the Parties agree that prior to the Company Closing Buyer may reveal or its Subsidiaries responding disclose Proprietary Information to any request or submitting any documentation other Persons to the extent reasonably necessary in response theretoconnection with Buyer's financing and risk management of the Included Assets, provide Acquiror a reasonable opportunity and, to review any such submission, response or related documentation and provide comments; provided the extent that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller consents, which consent shall not be unreasonably withheld or delayed. Notwithstanding , to such Persons with whom Buyer expects it may have business dealings regarding the foregoing, Included Assets from and after the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawClosing Date; provided, however, that all such Persons agree in writing to maintain the confidentiality of the Proprietary Information on substantially the same terms and conditions as those contained in the case Confidentiality Agreement; and provided, further, that Buyer shall be responsible for any breach by any such Persons of clause such confidentiality obligations.
(Af) Except as may be permitted under the Confidentiality Agreement, Buyer agrees that, prior to the Closing Date, it will not contact any vendors, suppliers, employees, or other contracting parties of NMC, Seller or Seller's Affiliates with respect to any aspect of the Included Assets or the transactions contemplated hereby, without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed; provided, however, that such consent shall not (subject to the notice requirement set forth in the next sentence) be required during the period beginning sixty (60) days prior to the anticipated Closing Date through the Closing Date. Notwithstanding the foregoing, prior to the Closing, (i) Buyer may conduct general employee meetings addressing the following topics: payroll, transition, compensation, health and wellness benefits, pension plans, 401(k) plan transitions, post-Closing policies and procedures and other matters of general employee concern, provided that Buyer shall provide NMC with notice of any such meeting a reasonable period of time in advance thereof and shall reasonably coordinate with NMC as to the conduct thereof and (Bii) Buyer may make any contacts with Persons as expressly contemplated by this Agreement, including without limitation contacts with vendors, suppliers and customers in connection with obtaining assignments of contracts and discussing the post-Closing relationship with such Persons, provided that Buyer shall keep Seller reasonably informed as to the existence of any such contacts.
(g) Upon Buyer's or Seller's (as the case may be) prior written approval (which approval shall not be unreasonably withheld or delayed), Seller or Buyer (as the Company shallcase may be) may provide Proprietary Information of the other Party to the NRC, and shall cause its Subsidiaries toFERC or any other Governmental Authority having jurisdiction over the Included Assets or any stock exchange, use commercially reasonable efforts as may be necessary to obtain Seller's Required Regulatory Approvals or Buyer's Required Regulatory Approvals, respectively. The disclosing Party shall seek confidential treatment for the Proprietary Information provided to any required consents such Governmental Authority and the disclosing Party shall notify the other Party as far in advance as practical of its intention to provide release to any Governmental Authority any such access, inspections, data Proprietary Information.
(h) Seller or other information and take such other action Buyer (such as the redaction case may be) may, without the prior consent of identifying or confidential informationthe other Party, entry into a joint defense agreement or disclose Proprietary Information of the other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) Party as is may be necessary to provide comply generally with any applicable Laws, requests from Governmental Authorities or with the rules of any applicable stock exchange. The disclosing Party shall notify the other Party as far in advance as practical of its intention to release to any third party any such accessProprietary Information.
(i) The Parties agree that the Confidentiality Agreement shall remain in effect until the Closing. Thereafter, data the Parties agree that any restrictions contained in the Confidentiality Agreement with respect to Buyer's disclosure of Proprietary Information shall terminate, other than with respect to the Proprietary Information of Seller that does not relate to the Included Assets. The Parties further agree that after the Closing Date, Seller shall keep confidential all Proprietary Information provided by Buyer or other information which Seller possesses with respect to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsIncluded Assets, to the extent practicable permitted by Law, and to the same extent and under the same conditions applicable to Buyer's obligations with respect to Seller's Proprietary Information as contained in the circumstances. No investigation pursuant Confidentiality Agreement between the Parties, but for a period of time equal to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by six (6) years from the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoClosing.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Asset Sale Agreement (CMS Energy Corp), Asset Sale Agreement (CMS Energy Corp)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing, subject to the requirements of applicable Law, the Company shall, and Seller shall cause its Subsidiaries to, (i) give Acquiror Buyer and Merger Sub and their its authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such all books, Contractsrecords contracts, commitments accounts, personnel records, communications with regulatory authorities and records (including Tax Returns) all other documents of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct which are relevant to the Company’s (business operations of the Company and its Subsidiaries’) independent public accountants , and to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and all personnel of the Company and its Subsidiaries; and (ii) permit Buyer to make inspections thereof as Acquiror or Merger Sub Buyer may from time to time reasonably request; provided however, (iiithat any such investigation shall be conducted at the location(s) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received on the terms specified by the Company or Seller during normal business hours under the supervision of Seller's personnel and in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated hereby and not interfere unreasonably with the business operations of Seller and the Company.
(b) All information concerning Seller, the Company, or the Subsidiaries furnished or provided by Seller or its Affiliates to Buyer or its representatives (whether furnished before or after the date of this Agreement) shall be held subject to the Confidentiality Agreement by and between Seller and Buyer, dated as of September 4, 1998 (the "Confidentiality Agreement"). Notwithstanding anything to the contrary contained in this Agreement, (i) neither Seller nor any Affiliate of Seller shall have any obligation to make available or provide to Buyer or its representatives a copy of any information applicable to Seller or any of its Subsidiaries during such period pursuant to Affiliates which is not used in, or relevant to, the requirements operations of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to (ii) following the public announcement of the execution of this clause (iv)Agreement contemplated by Section 5.5, the Company and its Subsidiaries shall not agree to settle or provide any remedy Buyer, with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld withheld, shall be permitted to disclose information regarding the Company to the public to the extent the Buyer deems such disclosure necessary to satisfy its disclosure obligations under state and federal securities laws or delayedto explain to the public its rationale for pursuing an acquisition of the Company.
(c) Buyer shall provide Seller with such documentation as Seller may reasonably request to confirm to Seller's satisfaction the accuracy of the representations made by Buyer in Section 4.3 and Buyer shall permit Seller to conduct a reasonable due diligence investigation concerning the financial capability, resources, condition and creditworthiness of Buyer.
(d) Nothing contained in this Section 5.2 shall be deemed to create any duty or responsibility on the part of either party to investigate or evaluate the value, validity or enforceability of any contract, lease or other asset included in the assets of the other party. Notwithstanding the foregoingWith respect to matters as to which any party has made express representations or warranties herein, the Company parties shall be entitled to rely upon such express representations and its Subsidiaries shall not be obligated to provide warranties irrespective of any investigations made by such accessparties, inspections, data or other information except to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that such investigations result in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions actual knowledge of the Confidentiality Agreementinaccuracy or falsehood of particular representations and warranties.
Appears in 2 contracts
Sources: Stock Purchase Agreement (America Service Group Inc /De), Stock Purchase Agreement (Medpartners Inc)
Access to Information. (a) During Until the period from Closing Time, subject to any Applicable Law, applicable privileges and contractual confidentiality obligations, (i) the date of this Agreement continuing until Sellers shall allow and shall cause the earlier QNX Entities to allow the Buyers and their representatives, accountants, legal counsel and advisors reasonable access during normal business hours upon reasonable prior notice to the properties, files, books, records, and offices of the valid termination QNX Entities (and books and records of this Agreement or the Effective Sellers to the extent related to the QNX Entities) for transition planning purposes, including any and all information relating to taxes, legal advice, commitments, contracts, leases, licenses, personnel, environmental, health and safety, personal property and financial condition and such other information and data as reasonably requested by the Buyers and (ii) the Sellers shall provide reasonable cooperation with the Buyers to arrange meetings during normal business hours between representatives of Buyers and personnel of the QNX Entities for transition planning purposes. Until the Closing Time, subject to the requirements of applicable Applicable Law, the Company shall, and Sellers shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub the QNX Entities’ accountants to cooperate with the Buyers and their authorized officersrepresentatives in making available all financial information reasonably requested; provided, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) however that the accountants of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company Sellers or any of its Subsidiaries during their Affiliates shall not be obliged to make any work papers available to any Person except in accordance with such period pursuant accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants. If so requested by the requirements of Sellers, the federal or state securities Laws Buyers and (iv) the Guarantor shall enter into a customary joint defense agreement with respect to the matters set forth on Section 6.03(a) of Sellers and the Disclosure Letter, consult with Acquiror QNX Entities with respect to any decisions of a legal nature related thereto and prior information to be provided to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect Buyers pursuant to this clause (ivSection 5.6(a), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No information or knowledge obtained in any investigation pursuant to this Section 6.03 5.6(a) or by Acquiror or its Affiliates prior to the execution of this Agreement shall affect or be deemed to modify any representation, warranty, covenant representation or other agreement made by the Company warranty contained in this Agreement or any of the conditions Transaction Documents or in any document contemplated in this Agreement or any of Acquiror the Transaction Documents and Merger Sub related theretono investigation made by the Buyers or their representatives shall affect the Buyers’ right to rely on any representation or warranty in this Agreement or any of the Transaction Documents or in any document contemplated in this Agreement or any of the Transaction Documents. All such access shall be subject to the terms of the Confidentiality Agreement.
(b) All From and after the Closing Time, subject to any Applicable Law, applicable privileges and contractual confidentiality obligations, in connection with any Claim by a Buyer Indemnified Person pursuant to this Agreement, in connection with complying with Applicable Law, including any inquiry of any Governmental Authority or any public reporting requirements, or in connection with any actual or threatened third party or regulatory action, suit, judgment or proceeding in each case in respect of the pre-Closing activities of the QNX Entities, the Buyers shall allow and shall cause the QNX Entities to allow the Sellers and their representatives, accountants, legal counsel and advisors reasonable access during normal business hours upon reasonable notice to the relevant properties, files, books, records, and offices of the QNX Entities, including such additional information obtained relating to taxes, legal advice, commitments, contracts, leases, licenses, personnel, environmental, health and safety, personal property and financial condition and other information and data as reasonably requested by Acquiror or Merger Sub the Sellers. In connection with any access permitted pursuant to this Section 6.03 5.6(b), the Buyers shall be subject cause their and the QNX Entities’ accountants to cooperate with the Sellers and their representatives in making available all financial information related to the provisions underlying purpose of such access as reasonably requested; provided, however that such accountants shall not be obliged to make any work papers available to any Person except in accordance with such accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants.
(c) The Sellers and the Buyers agree that each of them shall preserve and keep the records held by it relating to the QNX Entities and the Business for a period of six (6) years from the Closing Date. In the event the Sellers, on the one hand, or the Buyers, on the other hand, wish to destroy such records, such party shall use reasonable efforts to first give ninety (90) days’ prior written notice to the other and such other party shall have the right at its option and expense, upon prior written notice given to such party within that ninety (90) day period, to take possession of the Confidentiality Agreementrecords.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Harman International Industries Inc /De/)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and The Sellers shall cause its Subsidiaries to, (i) give Acquiror provide Purchaser and Merger Sub and their authorized its Representatives with full access during normal business hours, upon no less than forty-eight (48) hours prior written notice, to all personnel, officers, employees, agents, accountants, investment bankersproperties (including, counsel without limitation, for the purpose of environmental testing) and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesfacilities, officesof the Sellers, data centers the Business, the Purchased Assets and other facilities at reasonable times and to such books, Contracts, commitments the books and records (including Tax Returns) of relating to the Company Business and its Subsidiaries as Acquiror or Merger Sub may reasonably request the Purchased Assets and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror Purchaser and Merger Sub its Representatives with such financial all information and operating data available to Sellers or prepared in the normal course of business (including, without limitation, copies of Contracts, Plans and other information with respect to books and records) concerning the business, properties Business and personnel operations of the Company Business and the Purchased Assets as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company Purchaser or any of its Subsidiaries during such period pursuant to Representatives reasonably may request in connection with such investigation. All such information shall be kept confidential in accordance with the requirements terms of the federal or state securities Laws Confidentiality Agreement, dated as of September 9, 2010 (the “Confidentiality Agreement”), between Purchaser and (iv) with respect to Cerberus Capital Management, L.P. In the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions event of a legal nature related thereto conflict or inconsistency between the terms of this Agreement and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)Confidentiality Agreement, the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent terms of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretowill govern.
(b) All Upon the execution hereof, the provisions of the Confidentiality Agreement shall remain binding and in full force, except that the Confidentiality Agreement shall not apply to any documents prepared in connection with or proceeding before or filed with, or other disclosure made to, a court, arbitration tribunal or mediation service to enforce Purchaser’s or the Sellers’ rights arising in connection with the termination of this Agreement. The information obtained by Acquiror contained herein, in the Sellers’ Disclosure Schedule or Merger Sub delivered to Purchaser or its authorized representatives pursuant to this Section 6.03 hereto shall be subject to the provisions Confidentiality Agreement as Information (as defined and subject to the exceptions contained therein) until the Closing and, for that purpose and to that extent, the terms of the Confidentiality AgreementAgreement are incorporated herein by reference. Except as otherwise provided herein, the Sellers shall and shall cause their respective Representatives to, treat after the date hereof as strictly confidential (unless compelled to disclose by judicial or administrative process or, in the opinion of legal counsel, by other requirements of Law, including securities regulations) the terms of this Agreement and all nonpublic, confidential or proprietary information concerning the Business, and the Sellers shall not, and shall cause their respective Affiliates and their respective Representatives not to, use such information to the detriment of the Business. None of the Sellers has waived, nor will it waive, any provision of any confidentiality or similar agreement that relates to any of the Business, the Purchased Assets or the Assumed Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Rafaella Apparel Group,inc.), Asset Purchase Agreement (Perry Ellis International Inc)
Access to Information. (a) During the period from From the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawClosing, the Company Parent and Holdings shall, and shall cause its Subsidiaries each of the Transferred Companies to, (i) except as set forth in subparagraph (c), give Acquiror and Merger Sub and their its authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers personnel, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) properties of the Company Business, (ii) permit Acquiror to make such copies and its Subsidiaries inspections thereof as Acquiror or Merger Sub may reasonably request and instruct (iii) cause the Company’s officers, independent auditors (subject to Acquiror and its Subsidiaries’Acquiror Sub executing indemnification letters and waiver letters satisfactory to such independent auditor) independent public accountants of the Transferred Companies to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, business and properties and personnel of the Company Transferred Companies as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that any such access shall be conducted at Acquiror's expense, at a reasonable time, under the supervision of Holdings or the Transferred Companies and in such a manner as to maintain the case confidentiality of clause this Agreement and the transactions contemplated hereby and not to interfere unreasonably with the operation of the business of Holdings or any Transferred Company (Aiv) take such action, including without limitation, providing the reasonable use of appropriate officers as Acquiror and Acquiror Sub may reasonably request in connection with obtaining the Financing; provided that such action does not unreasonably interfere with such officer's duties in connection with the conduct of the Business.
(B)b) From the date of this Agreement to the Closing, the Company Acquiror shall, and shall cause its Subsidiaries Acquiror Sub to, use commercially (i) give Holdings and its authorized representatives reasonable efforts access to obtain any required consents all books, records, personnel, offices and other facilities and properties of Acquiror Sub, (ii) permit Holdings to provide make such access, inspections, copies and inspections thereof as Holdings may reasonably request and (iii) cause the officers of Acquiror and Acquiror Sub to furnish Holdings with (x) such financial and operating data or and other information with respect to the business and take properties of Acquiror Sub as Holdings may from time to time reasonably request and (y) such other action financial data of Acquiror as Holdings may from time to time reasonably request; provided, however, that any such access shall be conducted at Holdings' expense, at a reasonable time, under the supervision of Acquiror and Acquiror Sub and in such a manner as to maintain the confidentiality of this Agreement and the transactions contemplated hereby and not to interfere unreasonably with the operation of the business of Acquiror or Acquiror Sub.
(such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other c) All information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information and access provided to Acquiror and Merger Sub its representatives pursuant to subsection (a) above shall be subject to the terms and conditions of the letter agreement (the "Confidentiality Agreement"), among Acquiror, Cendant, Parent and PHH Vehicle Management Services Corporation, dated March 19, 1999. The Confidentiality Agreement shall survive the execution of this Agreement and the Closing, without limitation. Notwithstanding anything to the contrary contained in compliance with applicable Lawthis Agreement, none of Cendant, Parent, Holdings, any Transferred Company or any of their respective Affiliates shall have any obligation to make available or provide to Acquiror or its representatives a copy of any consolidated, combined or unitary Tax Return filed by Cendant, Parent, Holdings, or any of their respective Affiliates or predecessors, or any related materials.
(d) Parent and otherwise the Company Holdings shall, and shall cause its Subsidiaries their representatives to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or keep confidential all information provided by Acquiror and Acquiror Sub. Such information shall not be used by Parent or its Affiliates shall affect Holdings or be deemed to modify their representatives for any representation, warranty, covenant or purpose other agreement made by than in connection with analyzing the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretotransactions contemplated hereby.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger and Reorganization (Fah Co Inc), Merger Agreement (Avis Rent a Car Inc)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier Closing Date, U S WEST shall permit AirTouch and its representatives to have full access to the management, facilities, suppliers, accounts, books, records (including, without limitation, budgets and forecasts), contracts and other materials of the valid termination of this Agreement Domestic Wireless Business reasonably requested by AirTouch or the Effective Time, subject to the requirements of applicable Law, the Company shall, such representatives and shall cause make available to AirTouch and its Subsidiaries torepresentatives the directors, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel employees and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s independent accountants (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsso make available its former accountants) of the Domestic Wireless Business for interviews for the purpose of verifying the information furnished to AirTouch. Such access and availability shall be subject to existing confidentiality agreements and shall be conducted by AirTouch and its representatives during normal business hours, upon reasonable advance notice and in such a manner as not to interfere unreasonably with the extent practicable in business or operations of the circumstances. No investigation pursuant to this Section 6.03 Domestic Wireless Business or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoU S WEST.
(b) All From the date hereof until the Closing Date, AirTouch shall permit U S WEST and its representatives to have reasonable access to the management, accounts, books, records and Material Contracts of AirTouch and its Subsidiaries reasonably requested by U S WEST or such representatives in view of the issuance of shares of AirTouch Stock to Media (or the NV/PCS Transferee) in the Merger and shall make available to U S WEST and its representatives, as reasonably requested by U S WEST, the officers, employees and independent accountants of AirTouch and its Subsidiaries for interviews for the purpose of verifying the information obtained furnished to U S WEST. Such access and availability shall be consistent generally with the approach taken by Acquiror U S WEST and AirTouch (with respect to AirTouch information) prior to the date of this Agreement, shall be subject to existing confidentiality agreements and shall be conducted by U S WEST and its representatives during normal business hours, upon reasonable advance notice and in such a manner as not to interfere unreasonably with the business or Merger Sub operations of AirTouch and its Subsidiaries. To the extent that any information requested by U S WEST pursuant to this Section 6.03 6.3(b) relates to any business plans, forecasts, budgets or other forward-looking information, or to any business of AirTouch or its Subsidiaries which actually or potentially competes with any businesses of U S WEST or its Subsidiaries, AirTouch shall only be subject required to the provisions permit U S WEST'S investment bankers and outside legal advisors to have access to such information, and such investment bankers and outside legal advisors shall not distribute, disseminate or disclose such information to U S WEST or any of the Confidentiality Agreementits Subsidiaries.
(c) Each of U S WEST and AirTouch agrees that it will not, and will cause each of its respective Affiliates and representatives not to, use any information obtained pursuant to this
Appears in 2 contracts
Sources: Merger Agreement (Airtouch Communications Inc), Merger Agreement (Us West Inc)
Access to Information. (a) During Seller agrees that, prior to the period from the date of this Agreement continuing until the earlier Closing, Buyer will be entitled, through its Representatives, to make such investigation of the valid termination properties, businesses, employees and operations of this Agreement or the Effective Time, subject Business and such examination of the books and records of the Business as it reasonably requests (including for audits of inventory and receivables as may be reasonably required for obtaining financing in connection with the transactions contemplated hereby) and to make extracts and copies of such books and records. Any such investigation and examination will be conducted _______________________ * Confidential material redacted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (redacted material. during regular business hours upon reasonable notice) advance notice and under reasonable circumstances and will be subject to restrictions under applicable Law. Seller and its Representatives will cooperate with Buyer and Buyer’s Representatives in connection with such employeesinvestigation and examination, officesand Buyer and its Representatives will cooperate with Seller and its Representatives, data centers and other facilities at Buyer and its Representatives will use their reasonable times best efforts to minimize any disruption to the Business. By way of example and to such books, Contracts, commitments and records (including Tax Returns) not limitation of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct foregoing, Seller shall cooperate with Buyer in connection with Buyer’s efforts to plan for the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect integration of the Business to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or extent such cooperation would not violate any of its Subsidiaries during such period pursuant Antitrust Law. Notwithstanding anything herein to the requirements of the federal contrary, no such investigation or state securities Laws and (iv) with respect examination will be permitted to the matters set forth on Section 6.03(a) extent that it would require Seller to disclose information that conflicts with any confidentiality obligations to which Seller is bound or cause a waiver of any applicable privilege. Notwithstanding anything to the Disclosure Lettercontrary contained herein, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company Closing, Buyer will not (i) perform any subsurface investigations of the properties or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters facilities of Seller without the prior written consent of AcquirorSeller, which may be withheld for any reason or no reason, or (ii) contact any customers or suppliers of Seller to discuss the transactions contemplated by this Agreement or any employee of Seller (in each case other than as agreed by the Parties), without the prior consent of Seller, which consent shall not be unreasonably withheld withheld, conditioned or delayed. .
(b) Notwithstanding the foregoing, the Company and its Subsidiaries (i) Buyer shall not be obligated have access to provide such access(A) personnel records of the Business Employees including records relating to individual performance or evaluation records, inspectionsmedical histories, data individual employee benefit information or other information which in Seller’s opinion is sensitive or the disclosure of which could subject Seller or any of its Affiliates to risk of Liability, (B) any properties of Seller for purposes of conducting any environmental sampling or testing, (C) any information to the extent that relating to do so the Excluded Assets, or (D) any Tax Returns of Seller or any of Seller’s Affiliates or any work papers related thereto, and (ii) Seller may withhold (A) any information relating to the sale process, bids received from other Persons in connection with the transactions contemplated by this Agreement and information and analysis (including financial analysis) relating to such bids, and (B) any document or information, the disclosure of which could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person Contract or any Law; provided, howeverresult in the loss of protectable interests in trade secrets, that or result in the waiver of any legal privilege or work-product privilege (provided that, in the case of this clause (A) and (B), Seller shall give notice to Buyer of the Company shall, fact that such documents or information are being withheld and thereafter Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide cause such access, inspections, data documents or other information and take such other action (such as the redaction of identifying or confidential information, entry into as applicable, to be made available in a joint defense agreement manner that would not reasonably be expected to cause such a violation, disclosure or other agreement or by providing such accesswaiver).
(c) During the period commencing on the Closing Date and ending on the date that is the seventh anniversary of the Closing Date, inspections, data or other information Buyer will give Seller reasonable access during Buyer’s regular business hours upon reasonable advance notice to books and records transferred to Buyer solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable necessary for the preparation of financial statements, regulatory filings or Tax Returns of Seller or its Affiliates in respect of periods ending on or prior to Closing, or in connection with any Legal Proceedings. Seller will be entitled, at its sole cost and expense, to make copies of the circumstances. No investigation books and records to which it is entitled to access pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto5.2(c).
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BOISE CASCADE Co), Asset Purchase Agreement (BOISE CASCADE Co)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier of the valid termination of this Agreement or the Effective TimeClosing, subject to the requirements of applicable Lawupon reasonable notice, the Company Seller shall, and shall cause its Subsidiaries Representatives to, (i) give Acquiror afford the Purchaser and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other its Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, the offices, data centers properties and other facilities at reasonable times and to such books, Contracts, commitments books and records (including Tax Returns) of the Company Seller and its Subsidiaries as Acquiror to the extent related to the Business or Merger Sub may reasonably request any Business Employee and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with to the Representatives of the Purchaser such additional financial and operating data and other information with respect to regarding the business, properties and personnel of Business (or copies thereof) as the Company as Acquiror or Merger Sub Purchaser may from time to time reasonably request; provided that any such access or furnishing of information shall be conducted at the Purchaser’s sole expense, (iii) furnish promptly during normal business hours, under the supervision of the Seller’s personnel and in a manner that minimizes disruption of the normal operations of the Business. Notwithstanding anything to Acquiror and Merger Sub a copy of each reportthe contrary in this Agreement, schedule and other document filed or received by neither the Company or Seller nor any of its Subsidiaries during such period pursuant shall be required to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to disclose any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so Purchaser if such disclosure would, as reasonably determined by the Seller’s counsel, (A) could reasonably be expected to jeopardize an any attorney-client or other legal privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation contravene any applicable Laws (including any Regulatory Law) or binding agreement with a third party entered into prior to any Person or any Lawthe date hereof; providedprovided that, however, that in the case of clause (A) and (B)each case, the Company Seller shall, and shall cause its Subsidiaries Representatives to, use commercially reasonable efforts to obtain any required consents make appropriate substitute arrangements to provide such accessinformation (or portions thereof) under circumstances in which the restrictions of the preceding sentence apply.
(b) Solely in order to facilitate the resolution of any claims made against or incurred by the Seller relating to the Business, inspectionsfor purposes of compliance with securities, data employment and other Laws and for Tax and financial reporting purposes (but, in each case, not with respect to any dispute between the Parties), for a period of seven (7) years after the Closing or, if shorter, the applicable period specified in the Purchaser’s document retention policy, the Purchaser shall (i) retain the books and records relating to the Business relating to periods prior to the Closing and (ii) upon reasonable notice, afford the Representatives of the Seller reasonable access (including the right to make, at the Seller’s sole expense, photocopies), during normal business hours under the supervision of the Purchaser’s personnel and in a manner that minimizes disruption of the normal operations of the Purchaser’s business, to such books and records; provided that the Purchaser shall notify the Seller at least forty-five (45) days in advance of destroying any such books and records prior to the seventh anniversary of the Closing in order to provide the Seller the opportunity to copy such books and records, at the Seller’s sole expense, in accordance with this Section 5.2(b); and provided, further, that any Tax information shall be provided on a pro forma basis (solely with respect to the Business). Notwithstanding the foregoing, the Purchaser shall not be required to disclose any information to the Seller or its Representatives if such disclosure would, as reasonably determined by the Purchaser’s counsel, (A) waive any attorney-client or other information and take such other action legal privilege or (such as B) contravene any applicable Laws or any binding agreement with a third party not entered into for the redaction purposes of identifying or confidential informationfrustrating the rights granted to the Seller under this Section 5.2(b); provided, entry into a joint defense agreement or other agreement or by providing such accessthat, inspectionsin each case, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company Purchaser shall, and shall cause its Subsidiaries Representatives to, use commercially reasonable best efforts to institute make appropriate substitute disclosure arrangementsarrangements to provide such information (or portions thereof) under circumstances in which the restrictions of the preceding sentence apply.
(c) Solely in order to facilitate the resolution of any claims made against or incurred by the Purchaser relating to the Business, for purposes of compliance with securities, employment and other Laws and for Tax and financial reporting purposes (but, in each case, not with respect to any dispute between the Parties), for a period of seven (7) years after the Closing or, if shorter, the applicable period specified in the Seller’s document retention policy, the Seller shall (i) retain the books and records relating to the portion of the Business conducted by it relating to periods prior to the Closing which shall not otherwise have been delivered to the Purchaser and (ii) upon reasonable notice, afford the Representatives of the Purchaser reasonable access (including the right to make, at the Purchaser’s sole expense, photocopies), during normal business hours under the supervision of the Seller’s personnel and in a manner that minimizes disruption of the normal operations of the Purchaser’s business, to such books and records; provided that the extent practicable Seller shall notify the Purchaser at least forty-five (45) days in advance of destroying any such books and records prior to the circumstancesseventh anniversary of the Closing in order to provide the Purchaser the opportunity to copy such books and records, at the Purchaser’s sole expense, in accordance with this Section 5.2(c); and provided, further, that any Tax information shall be provided on a pro forma basis (solely with respect to the Business). Notwithstanding the foregoing, neither the Seller nor any of its Subsidiaries shall be required to disclose any information to the Purchaser or its Representatives if such disclosure would, as reasonably determined by the Seller’s counsel, (A) waive any attorney-client or other legal privilege or (B) contravene any applicable Laws or any binding agreement with a third party not entered into for the purposes of frustrating the rights granted to the Purchaser under this Section 5.2(c); provided, that, in each case, the Seller shall, and shall cause its Representatives to, use commercially reasonable efforts to make appropriate substitute arrangements to provide such information (or portions thereof) under circumstances in which the restrictions of the preceding sentence apply.
(d) No investigation or access pursuant to this Section 6.03 5.2 or by Acquiror information provided, made available or its Affiliates shall delivered pursuant to this Agreement, will affect or be deemed to modify any representation, warranty, covenant of the representations or other agreement made by warranties of the Company Parties contained in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject hereunder to the provisions obligations of the Confidentiality AgreementParties.
Appears in 2 contracts
Sources: Equity and Asset Purchase Agreement (Liberty Tax, Inc.), Equity and Asset Purchase Agreement (Sears Hometown & Outlet Stores, Inc.)
Access to Information. Prior to Closing, Seller agrees to (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement give or the Effective Timecause to be given to Buyer and its employees, subject advisors and other representatives such access, during normal business hours, to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officersoffices, employees, accountantsproperties, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments books and records (including Tax Returns) of the Company Seller and its Subsidiaries Affiliates relating to the Business, the Assets and the Assumed Liabilities as Acquiror or Merger Sub Buyer may from time to time reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (iib) furnish Acquiror and Merger Sub with or cause to be furnished to Buyer such financial and operating data and other information with respect to the businessBusiness, properties the Assets and personnel of the Company Assumed Liabilities as Acquiror or Merger Sub Buyer may from time to time reasonably request. After the Closing Date, (iii) furnish promptly Buyer shall, at reasonable times, permit Seller to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements make reasonable examination of the federal or state securities Laws books and (iv) with respect to the matters set forth on Section 6.03(a) records of the Disclosure Letter, consult with Acquiror with respect Business relating to any decisions of a legal nature related thereto and time periods ending at or prior to the Company Closing Date and shall permit Seller to make copies of the relevant portions of such books and records at Seller's expense, in each case to the extent necessary for Seller or its Subsidiaries responding Affiliates to any request comply with applicable legal, tax or submitting any documentation in response theretoaccounting requirements. After the Closing Date, provide Acquiror a Seller shall, at reasonable opportunity times, permit Buyer to review any make reasonable examination of the books and records of the Seller relating to the Business and shall permit Buyer to make copies of the relevant portions of such submissionbooks and records at Buyer's expense to the extent necessary for Buyer or its Affiliates to comply with applicable legal, response tax or related documentation and provide comments; provided that with respect accounting requirements. In addition to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could Buyer shall make available to Seller at Seller's expense (x) all documents and records of the Business for copying and inspection and (y) all Buyer personnel employed or formerly employed by the Business to interview or use as a witness, which Seller shall reasonably be expected request for the prosecution or defense of any claim or demand arising out of or relating to jeopardize an attorney-client privilege any Excluded Liability or attorney work product protection, Excluded Assets of the Business or to otherwise satisfy its obligations to Buyer under Section 8.1 and (B) would violate an existing confidentiality obligation Seller shall make available to Buyer at Buyer's expense (x) all documents and records relating to the Business for copying and inspection and (y) all Seller personnel formerly employed by the Business to interview or use as a witness, which Buyer shall reasonably request for the prosecution or defense of any claim or demand arising out of or relating to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement Assets or the conditions Business or to otherwise satisfy its obligations to Seller under Section 8.2. Any use of Acquiror and Merger Sub related thereto.
(b) All information obtained Buyer's personnel by Acquiror Seller, or Merger Sub pursuant to this Section 6.03 Seller's personnel by Buyer, for more than one half a day shall be subject charged at a per diem rate equal to the provisions a pro rata portion of the Confidentiality Agreementemployee's total compensation, plus any travel expenses.
Appears in 2 contracts
Sources: Asset Purchase Agreement (CTB International Corp), Asset Purchase Agreement (Butler Manufacturing Co)
Access to Information. Sellers agree that, prior to the Closing Date, Purchaser shall be entitled, through its officers, employees and representatives (a) During the period from the date of this Agreement continuing until the earlier including, without limitation, its legal advisors and accountants), to make such investigation of the valid termination properties, businesses and operations of this Agreement or the Effective Time, subject to Business and such examination of the requirements books and records of applicable Lawthe Business, the Company shall, Purchased Assets and the Assumed Liabilities as it reasonably requests and to make extracts and copies of such books and records. Any such investigation and examination shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (be conducted during regular business hours upon reasonable notice) advance notice and under reasonable circumstances and shall be subject to such restrictions under applicable Law. Sellers shall cause the officers, employees, officesconsultants, data centers agents, accountants, attorneys and other facilities at reasonable times representatives of Sellers to cooperate with Purchaser and to Purchaser’s representatives in connection with such booksinvestigation and examination, Contracts, commitments and records (including Tax Returns) of the Company Purchaser and its Subsidiaries as Acquiror or Merger Sub may reasonably request representatives shall cooperate with Sellers and instruct the Company’s (their representatives and its Subsidiaries’) independent public accountants shall use their reasonable efforts to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect minimize any disruption to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant Business. Notwithstanding anything herein to the requirements of the federal contrary, no such investigation or state securities Laws and (iv) with respect examination shall be permitted to the matters set forth on Section 6.03(a) extent that it would require Sellers to disclose information subject to attorney-client privilege or conflict with any confidentiality obligations to which any Seller is bound. Purchaser will not contact any employee, customer or supplier of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that Sellers with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters Agreement without the prior written consent of Acquiror, Sellers (which such consent shall will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law); provided, however, that so long as there is no disruption to the Business and Purchaser’s conduct is in accordance with the case reasonable requirements of clause Sellers, Purchaser shall be entitled to contact and engage in discussions with (Ai) counterparties to Assumed Contracts and Assumed Executory Contracts in connection with Purchaser’s attempt to negotiate amounts necessary to cure any breach or default under such contracts, (ii) Sellers’ vendors and (B)iii) Seller’s customers, and, Sellers shall cooperate with Purchaser to facilitate such contact and discussions between Purchaser and such counterparties, vendors and customers. Promptly following the Company shalldate of this Agreement, Sellers shall provide Purchaser with contact information for Seller’s customers and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain suppliers and notwithstanding any required consents to provide such access, inspections, data or other information and take such other action (such as agreement between the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, parties to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representationcontrary, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 Purchaser shall be subject entitled to the provisions of the Confidentiality Agreementcontact such customers and suppliers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New Century Energy Corp.), Asset Purchase Agreement (New Century Energy Corp.)
Access to Information. (a) During the period from Interim Period, Seller shall cause the date of this Agreement continuing until Companies to provide Buyer and its Representatives with information as to the earlier Companies and their material operations, as reasonably requested by Buyer and to the extent such information is readily available or could be obtained without any material interference with the business or operations of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedCompanies. Notwithstanding the foregoing, the Company and its Subsidiaries Seller shall not be obligated required to provide such any information which Seller reasonably believes it or the Companies are prohibited from providing to Buyer by reason of applicable Law, which constitutes or allows access to information protected by attorney/client privilege. Buyer shall not be permitted during the Interim Period to contact any of the Companies’ vendors, customers or suppliers, or any Governmental Entities (except in connection with applications for governmental approvals in connection with this Agreement and obtaining publicly available information) regarding the operations or legal status of the Companies without receiving prior written authorization from Seller.
(b) After the Closing, Buyer will, and will cause its Representatives to, afford to Seller, including its Representatives, reasonable access, inspectionsupon reasonable prior notice and during normal business hours, data or other information to all books, records, files and documents to the extent that they are related to do so (A) could reasonably the Companies in order to permit Seller to prepare and file its Tax Returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in any other investigation and defend any Proceedings relating to or involving Seller, to discharge its obligations under this Agreement, to comply with financial reporting requirements, and for other reasonable purposes, and will afford Seller reasonable assistance in connection therewith. Except as otherwise provided in Section 6.15(f), Buyer will cause such records to be expected maintained for not less than seven years from the Closing Date and will not dispose of such records without first offering in writing to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation deliver them to any Person or any LawSeller; provided, however, that in the case event that Buyer transfers all or a portion of clause (A) the business of the Companies to any third party during such period, Buyer may transfer to such third party all or a portion of the books, records, files and (Bdocuments related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.1(b). In addition, on and after the Company shallClosing Date, at Seller’s request, Buyer shall make available to Seller and shall cause its Subsidiaries toAffiliates, use commercially reasonable efforts to obtain employees, representatives and agents, those employees of Buyer requested by Seller in connection with any required consents Proceeding, including to provide testimony, to be deposed, to act as witnesses and to assist counsel; provided, however, that such accessaccess to such employees shall not unreasonably interfere with the normal conduct of the operations of Buyer. Seller shall reimburse Buyer 125% of the costs incurred by Buyer in complying with the provisions of this Section 6.1(b). Notwithstanding the foregoing, inspections, data or other information Buyer and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary Companies shall not be required to provide such access, data any information which Buyer reasonably believes it or other information the Companies are prohibited from providing to Acquiror and Merger Sub in compliance with Seller by reason of applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts which constitutes or allows access to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made information protected by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoattorney/client privilege.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ugi Utilities Inc), Stock Purchase Agreement (PPL Corp)
Access to Information. (a) During Seller agrees that, between the period from the date of this Agreement continuing until Execution Date and the earlier of the valid termination of Closing Date and the date on which this Agreement or the Effective Timeis terminated in accordance with Section 4.4, subject to the requirements of applicable LawPurchaser shall be entitled, the Company shall, and shall cause through its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, counsel, accountants and other authorized representatives, agents and contractors (“Representatives”), to have such reasonable access to and make such reasonable investigation and examination of the books and records, properties, businesses, assets, Employees, accountants, investment bankersauditors, counsel and other operations of Seller as Purchaser’s Representatives reasonable access may reasonably request (including for the avoidance of doubt, any attorneys or agents handling the prosecution or maintenance of the Seller Registered Intellectual Property Rights), provided, however, that Seller shall not be obligated to provide information that it is not permitted to provide under applicable Law. Any such investigations and examinations shall be conducted during regular business hours upon reasonable notice) advance notice and under reasonable circumstances, including Seller’s right to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company have its Representatives accompany Purchaser and its Subsidiaries as Acquiror Representatives upon the Leased Real Property at the time of any inspection or Merger Sub may reasonably request examination and instruct the Company’s (shall be subject to restrictions under applicable Law. Pursuant to this Section 9.2, Seller shall furnish to Purchaser and its Subsidiaries’) independent public accountants to provide access to their work papers Representatives such financial, operating and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating property related data and other information as such Persons reasonably request. Seller shall use commercially reasonable efforts to cause its Representatives to reasonably cooperate with respect Purchaser and Purchaser’s Representatives in connection with such investigations and examinations, and Purchaser shall, and use its commercially reasonably efforts to cause its Representatives to, reasonably cooperate with Seller and its Representatives and shall use their reasonable efforts to minimize any disruption to the businessBusiness. Purchaser and its Representatives shall be permitted to contact, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably requestengage in discussions or otherwise communicate with Seller’s landlords, (iii) furnish promptly to Acquiror and Merger Sub a copy of each reportclients, schedule suppliers and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) Persons with respect to the matters set forth on Section 6.03(a) of the Disclosure Letterwhich Seller has material commercial dealings, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response theretoprovided, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without Purchaser must obtain the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld or delayed, to initiate such communications and give Seller the opportunity to be present therefor.
(b) From and after the Closing Date, Seller shall, and shall cause its Subsidiaries to, give Purchaser and Purchaser’s Representatives reasonable access during normal business hours to the offices, facilities, properties, assets, Employees, Documents (including, without limitation, any Documents included in the Excluded Assets), personnel files and books and records of Seller pertaining to the Business. Notwithstanding In connection with the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company Seller shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain cause their respective Representatives to furnish, at Purchaser’s expense, to Purchaser such financial, technical, operating and other information pertaining to the Business as Purchaser’s Representatives shall from time to time reasonably request and to discuss such information with such Representatives. Without limiting the generality of the foregoing, at Purchaser’s expense, Seller shall cooperate with Purchaser as may reasonably be requested by any required consents of Purchaser or its Representatives for purposes of (i) enabling an independent accounting firm selected by Purchaser to provide conduct an audit of the Business, including access to Seller’s independent auditors’ working papers pertaining to the Business or the Acquired Assets including any environmental assessment; (ii) undertaking, with the consent of Seller, which consent shall not be unreasonably withheld or delayed, any study of the condition or value of the Acquired Assets; and (iii) undertaking any study relating to Seller’s compliance with Laws; and Seller acknowledges that information or access may be requested and used for such purpose; provided, however, that the access, inspectionsand related rights to investigate and examine, data or other information granted to Purchaser and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation Representatives pursuant to this Agreement shall not constitute nor be construed as a waiver of any applicable legal privilege of Seller, including the attorney-client and work product privileges.
(c) From and after the Closing Date until the first (1st) anniversary of the Closing Date, Purchaser shall give Seller and Seller’s Representatives reasonable access during normal business hours to the offices, facilities, properties, assets, Employees, Documents (including, without limitation, any Documents included in the Acquired Assets), personnel files and books and records of Purchaser pertaining to (i) the conduct of the Business or ownership of the Acquired Assets prior to the Closing Date or (ii) the Excluded Assets and Excluded Liabilities that are reasonable and necessary to the administration of Seller’s estate, provided however that Seller shall reimburse Purchaser for ordinary and necessary out-of-pocket costs incurred by Purchaser related to such access (i.e. copying costs). In connection with the foregoing, Purchaser shall use commercially reasonable efforts to cause its Representatives to furnish to Seller such financial, technical, operating and other information pertaining to (i) the conduct of the Business or ownership of the Acquired Assets prior to the Closing Date, or (ii) the Excluded Assets and Excluded Liabilities, in each case, as Seller’s Representatives shall from time to time reasonably request and to discuss such information with such Representatives.
(d) No information received pursuant to an investigation made under this Section 6.03 or by Acquiror or its Affiliates 9.2 shall affect or be deemed to modify (i) qualify, modify, amend or otherwise affect any representationrepresentations, warrantywarranties, covenant covenants or other agreement made by the Company agreements of Seller set forth in this Agreement or any certificate or other instrument delivered to Purchaser in connection with the transactions contemplated hereby, (ii) amend or otherwise supplement the information set forth in the Seller Disclosure Schedule, (iii) limit or restrict the remedies available to the parties under applicable Law arising out of a breach of this Agreement or otherwise available at Law or in equity, or (iv) limit or restrict the ability of either party to invoke or rely on the conditions to the obligations of Acquiror and Merger Sub related thereto.the parties to consummate the transactions contemplated by this Agreement set forth in Article X.
(be) All information obtained by Acquiror On the Execution Date, Seller shall provide Purchaser with a list of all payments, filings, and other actions which are due to be made or Merger Sub pursuant to this Section 6.03 shall be subject taken in connection with the prosecution and maintenance of the Seller Registered Intellectual Property Rights during the period beginning on the date hereof and extending to the provisions of date that is three (3) months following the Confidentiality Agreementscheduled Closing Date. Such list will be promptly updated by Seller if the scheduled Closing Date is postponed.
Appears in 2 contracts
Sources: Asset Purchase Agreement (BIND Therapeutics, Inc), Asset Purchase Agreement (BIND Therapeutics, Inc)
Access to Information. (a) During Prior to the period from Closing, the date Purchaser shall be entitled, through its officers and representatives (including its legal advisors, accountants and sources of this Agreement continuing until the earlier financing and their representatives), to make such additional reasonable investigation of the valid termination Business and such additional reasonable examination of this Agreement or the Effective Time, subject books and records of the members of the Company Group and of the Seller with respect to the requirements Business as the Purchaser reasonably requests, including for the purpose of applicable Law, assisting Seller with the Company shall, preparation of audited financial statements of the Business. Any such investigation and examination shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (be conducted during regular business hours upon reasonable notice) to such employees, offices, data centers advance notice and other facilities at under reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and circumstances. The Seller shall cause its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants ’ employees and other representatives to provide access to their work papers cooperate reasonably with the Purchaser and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub the Purchaser’s representatives in connection with such financial investigation and operating data examination, and other information the Purchaser and its representatives shall cooperate with respect the Seller and its representatives and shall use reasonable efforts to minimize any disruption to the businessBusiness. Notwithstanding anything herein to the contrary, properties and personnel of such investigation or examination need not be permitted to the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by extent that it would require the Company Seller or any of its Subsidiaries during such period pursuant to disclose any information subject to attorney-client privilege or to disclose any information in violation of any applicable Law or in violation of any confidentiality obligation to which the requirements Seller or any of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding is bound so long as the Seller notifies Purchaser in advance that it is withholding such information and makes reasonable efforts to any request or submitting any documentation provide such information in response thereto, provide Acquiror a reasonable opportunity to review way that does not violate any such submissionagreement or law or waive any such privilege.
(b) The Purchaser shall preserve and keep the business records (including electronic documents and email) transferred to it by the Seller for the time and in the manner specified by applicable Law and, response for a period of seven years after the Closing (or related documentation and provide comments; provided earlier if the Seller notifies the Purchaser that with respect to this clause (ivsuch preservation is no longer necessary), the Company Purchaser shall cause its Subsidiaries to give the Seller reasonable access during the Purchaser’s regular business hours upon reasonable advance notice and under reasonable circumstances to books and records transferred to the Purchaser and its Subsidiaries shall not agree hereunder to settle the extent necessary for the preparation of financial statements, regulatory filings or provide Tax returns of the Seller or its Affiliates in respect of periods ending on or prior to Closing, or in connection with any remedy with regard Legal Proceedings, inspection, investigation or examination relating to any such matters without period. The Seller shall be entitled to make copies of the prior written consent books and records to which it is entitled to access pursuant to this paragraph. In addition, after the Closing, the Seller shall give access to its books and records and cooperate with the Purchaser in connection with the preparation of Acquiror, which consent shall not be unreasonably withheld financial statements and other financial or delayedother information about the Business. Notwithstanding the foregoing, the Company and its Subsidiaries parties shall not only be obligated required to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance comply with applicable Law, and otherwise discovery rules with respect to information relevant to disputes between the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoparties.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Lehman Brothers Holdings Inc)
Access to Information. (a) During the period from From the date of this Agreement continuing until hereof through the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, upon reasonable notice and subject to the requirements of any limitations imposed by applicable Law, the Company shallshall afford to Buyer and its Representatives access, and shall cause during normal business hours, to all its Subsidiaries topersonnel, (i) give Acquiror and Merger Sub and their authorized officersproperties, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contractscontracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such all other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the concerning its business, properties assets, personnel and personnel of the Company Tax status as Acquiror or Merger Sub Buyer may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)Buyer and its Representatives will not disrupt the operations or activities of the Company, and if applicable Law limits such access, the Company and its Subsidiaries shall not agree Parties will cooperate in good faith to settle or establish an alternative mechanism to provide any remedy the information that Buyer desires to obtain in connection with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedaccess. Notwithstanding the foregoing, (i) nothing herein will require any employee or Representative of the Company and its Subsidiaries shall not be obligated Seller, the Company or their respective Affiliates to provide such accessany information regarding the Business of the Company in any other format or otherwise to manipulate or reconfigure any data regarding the Business of the Company, inspections, data (ii) nothing herein will require the Company or other information their Affiliates to the extent that provide Buyer or its Representatives with access to do so or copies of (A) any information subject to attorney-client or attorney work product privilege or any similar protection, (B) any information the disclosure of which could reasonably be expected to jeopardize an attorney-client privilege violate any applicable Law or attorney work product protection, the terms of any Contract or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that result in the case loss of clause protectable interests in trade secrets (A) and (B), the provided that Company shall, and shall cause its Subsidiaries to, Seller will use commercially reasonable efforts to obtain any required consents to provide such accessinformation in a manner that does not violate such Law or is in accordance with such Contract), inspections, data (C) any Tax Returns of Company Seller or any of its Affiliates (other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise than the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, or to the extent practicable related to the Company) and (D) any information relating to the sale process, bids received from other Persons in connection with the circumstancestransactions contemplated by this Agreement and information and analysis (including financial analysis) relating to such bids; and (iii) nothing contained herein will permit Buyer to conduct any intrusive or invasive environmental sampling (including any soil, sediment and groundwater sampling) without Company Seller’s consent (which may be withheld in Company Seller’s sole discretion). No investigation pursuant All requests for access will be made to this Section 6.03 such Representatives of Company Seller as Company Seller will designate, who will be solely responsible for coordinating all such requests and access thereunder. Notwithstanding the foregoing, prior to Closing, Buyer and Buyer’s Representatives shall not contact or by Acquiror in any other manner communicate with customers (including clients) or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by suppliers of the Company in connection with the transactions contemplated by this Agreement without Company Seller’s consent (not to be unreasonably withheld, conditioned or the conditions of Acquiror delayed) and Merger Sub related theretoparticipation in such contact or communication.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 2 contracts
Sources: Equity Interest Purchase and Reorganization Agreement (Marpai, Inc.), Equity Interest Purchase and Reorganization Agreement (Marpai, Inc.)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the Closing (or the earlier of the valid termination of this Agreement or the Effective Time, subject pursuant to the requirements of applicable LawArticle VIII), the Company shall, (in its discretion) will provide Purchaser and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives Advisors with reasonable access (and upon reasonable advance notice and during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments the books and records (including Tax Returns) of the Company and its Subsidiaries to the extent primarily related to the Business, in order for Purchaser and its authorized Advisors to access such information regarding the Company and its Subsidiaries to the extent primarily related to the Business as Acquiror Purchaser reasonably deems necessary in connection with effectuating the transactions contemplated by this Agreement; provided that (i) such access does not unreasonably interfere with the normal operations of the Business or Merger Sub may reasonably request and instruct the Company’s (Company and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect access will occur in such a manner as the Company reasonably determines to be appropriate to protect the business, properties and personnel confidentiality of the Company as Acquiror or Merger Sub may from time to time reasonably requesttransactions contemplated by this Agreement, (iii) furnish promptly all requests for access will be directed to Acquiror ▇▇▇▇▇ ▇▇▇▇▇ or such other Person(s) as the Company may designate in writing from time to time, (iv) such access shall occur only if permitted by and Merger Sub only in a manner consistent with and not in contravention of any policy, procedure or protocol of Seller or the Business in response to COVID-19 or any COVID-19 Measures, (v) Purchaser shall not be permitted to conduct any environmental testing, sampling or other invasive investigation at any Owned Real Property or Leased Real Property unless, (A) a Phase I environmental site assessment identifies a “recognized environmental condition” on a parcel of Acquired Owned Real Property or Acquired Leased Real Property requiring further on-site investigation or sampling and the nature of such recognized environmental condition lends itself to targeted on-site investigation or sampling, (B) a copy of each reportsuch Phase I environmental site assessment is provided to Seller and (C) Seller provides its prior written consent, schedule not to be unreasonably withheld (it being acknowledged and other document filed agreed that it shall not be unreasonable for Seller to withhold consent regarding any Acquired Leased Real Property for which the consent of a third party would also be required), and (vi) nothing herein will require Seller to provide access to, or received by to disclose any information to, Purchaser if such access or disclosure (A) would cause significant competitive harm to the Business or the Company or any of its Subsidiaries during such period pursuant to if the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or transactions contemplated by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.are not consummated,
Appears in 1 contract
Sources: Asset Purchase Agreement
Access to Information. (a) During In addition to the period from rights granted by Sections 6.1(b) and (c), between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, Seller will, during ordinary business hours and upon reasonable notice and subject to the requirements of compliance with all applicable Law, the Company shall, NRC rules and shall cause its Subsidiaries to, regulations
(i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Buyer Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at and properties constituting the NMP-1 Assets; (ii) permit Buyer to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, other than Phase II environmental site assessments (iiwhich have been conducted prior to the date hereof); (iii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company NMP-1 Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer a copy of each material report, schedule and or other document filed or received by it since the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) date hereof with respect to the matters set forth on Section 6.03(a) of NMP-1 Assets with the Disclosure LetterSEC, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response theretoNRC, provide Acquiror a reasonable opportunity to review any such submissionFERC, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person NYPSC or any Lawother Governmental Authority having jurisdiction over the NMP-1 Assets; provided, however, that in the case of clause (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the NMP-1 Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (B)C) Seller need not supply Buyer with any information that Seller is legally prohibited to supply. NMPC will provide Buyer or Buyer's Representatives with access to the Transferred Employee Records that it has, the Company shall, and but NMPC shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any not be required consents to provide access to other employee records or medical information unless required by law or specifically authorized by the affected employee. Notwithstanding anything in this Section 6.2 to the contrary, NMPC will only furnish or provide such accessaccess to Transferred Employee Records and personnel and medical records as is required by law, inspectionslegal process or subpoena (other than data concerning salaries and benefits, data or dates of birth, dates of hire and other information and take such other action (such used to calculate pension benefits which shall be provided). NMPC shall keep Buyer generally informed as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions status of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the all material negotiations with collective bargaining representatives concerning provisions of the Confidentiality Agreementa successor collective bargaining agreement that would affect Transferred Employees.
Appears in 1 contract
Sources: Asset Purchase Agreement (Niagara Mohawk Power Corp /Ny/)
Access to Information. (a) During the period from From and after the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company shall, and Sellers shall cause its Subsidiaries to, the Companies to (ia) give Acquiror permit Buyers and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Buyers’ Representatives reasonable access (access, during regular normal business hours upon reasonable notice) advance notice to Seller Representative, under the supervision of the Companies’ personnel and in such employeesa manner as not to interfere with the conduct of the Business, officesat premises located on the Leased Real Property or as otherwise agreed by Seller Representative and Buyers, data centers to inspect such files, books, records, documents, and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) information of the Company and its Subsidiaries Companies regarding the Business or Assets as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestrequested by Buyers, (iib) furnish Acquiror instruct its Representatives to make available to Buyers and Merger Sub with such financial Buyers’ authorized Representatives any and all financial, technical and operating data and other information with respect pertaining to the businessBusiness or Assets reasonably requested by Buyers, properties and personnel (c) make available for inspection by Buyers true and complete copies of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant documents relating to the requirements of the federal or state securities Laws foregoing reasonably requested by Buyers; provided, however, that Buyers shall not, and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries Buyers shall not agree to settle or provide permit their authorized Representatives to, conduct any remedy with regard to environmental sampling of any such matters real property without the prior written consent of AcquirorSeller Representative, which consent may withheld, conditioned, or delayed for any reason. All requests by Buyers pursuant to this Section 5.3 shall be submitted or directed exclusively to FMI Capital Advisors, Inc. or Seller Representative, or such other individuals as either or both of them may designate in writing to Buyers from time to time. Notwithstanding anything herein to the contrary, Sellers shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated required to provide such access, inspections, data or other disclose (a) any information to Buyers if such disclosure would, in Seller Representative’s reasonable discretion, based on the extent that to do so (A) could reasonably be expected to advice of outside counsel, contravene any applicable law or fiduciary duty, or non-disclosure obligations or jeopardize an any attorney-client privilege (after using reasonable efforts to seek consent or attorney work product protectionwaiver of such privileges if held by a third person or, if held by the Sellers or its Affiliates, an alternative course of action to most closely effectuate such disclosure) or (b) any Excluded Information. Prior to the Closing, without the prior written consent of Seller Representative, not to be unreasonably withheld, conditioned, or delayed, Buyers shall not contact (i) any suppliers to, or customers of, the Business, (ii) any employees of (other than Seller Representative or ▇▇▇▇▇ ▇▇▇▇▇▇) or independent contractors to the Companies, or (Biii) would violate an existing confidentiality obligation to any Person or landlord under any Law; provided, however, that in of the case of clause (A) and (B), the Company Leases. Buyers shall, and shall cause its Subsidiaries their Representatives to, use commercially reasonable efforts abide by the terms and conditions of the Confidentiality Agreement with respect to obtain any required consents to provide such access, inspections, data access or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation provided pursuant to this Section 6.03 5.3. Additionally, in connection with any due diligence regarding the Leases or by Acquiror or its Affiliates the Leased Real Property, Buyers shall affect or be deemed to modify any representationcomply with all the terms, warranty, covenant or other agreement made provisions and conditions of the Leases when accessing the premises covered by the Company in this Agreement Leases for any purpose hereunder, or handling information regarding or relating to any portion of the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 Leased Real Property. Seller Representative shall be subject entitled to the provisions of the Confidentiality Agreementhave a representative present during any discussions between Buyers and any landlord under or with respect to any Leases or Leased Real Property, and during any discussions with any supplier, customer, or independent contractor.
Appears in 1 contract
Sources: Securities Purchase Agreement (Nine Energy Service, Inc.)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and --------------------- the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawClosing Date, the Company Seller shall, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror the Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other the Buyer Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at reasonable times and properties constituting the Purchased Assets to such books, Contracts, commitments and which access by Buyer is not prohibited by law excluding information relating to employee records (including Tax Returns) of other than the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestdescribed on Schedule 2.2(e), (ii) subject to Seller's approval of Buyer's selection (not to be unreasonably withheld) Buyer shall appoint a representative and beginning sixty (60) days prior to Closing such representative shall be permitted to make reasonably frequent visits on reasonable notice to the Purchased Assets for the purpose of performing reasonable inspections thereof; (iii) cause those persons in the positions listed on Schedule 1.1(71) and its advisors to furnish Acquiror and Merger Sub the Buyer with such financial and operating data and other information with respect to the business, properties and personnel of Purchased Assets as the Company as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; (iiiiv) cause those persons in the positions listed on Schedule 1.1(71) and its advisors to furnish promptly to Acquiror and Merger Sub the Buyer a copy of each report, schedule and or other document filed or received by them with the Company SEC, PUCN, CPUC or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) FERC with respect to the matters set forth Purchased Assets; and (v) at Buyer's reasonable request, make those persons in the positions listed on Section 6.03(aSchedule 1.1(71) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree advisors available during regular business hours for reasonable time periods to settle or provide any remedy with regard to any such matters without answer Buyer's questions concerning the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company Purchased Assets and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Lawtheir operation; provided, however, that in the case of clause (A) -------- ------- any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) the Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (B)C) the Seller need not supply the Buyer with any information which the Seller is under a legal obligation not to supply. Notwithstanding anything in this Section 7.2 to the contrary, (i) the Company shall, and Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to only furnish or provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely access to outside counsel to avoid the loss of attorney client privilege) medical records as is necessary required by law and (ii) the Buyer shall not have the right to provide such accessperform or conduct any environmental sampling or testing at, data in, on or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise underneath the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoPurchased Assets.
(b) All information furnished to or obtained by Acquiror or Merger Sub the Buyer and the Buyer Representatives pursuant to this Section 6.03 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Evaluation Material" (as defined in the Confidentiality Agreement) except for items acquired by Buyer as part of the Purchased Assets including but not limited to any books, operation records, operating, safety and maintenance manuals, engineering design plans, blueprints and as-built plans, specifications and procedures.
(c) Subject to Buyer's rights under the last sentence of this Section 7.2(c), for a period of ten (10) years after the Closing Date, the Seller and its representatives shall have reasonable access to all of the books and records of the Purchased Assets, as the case may be, transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operation of the Purchased Assets prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by them pursuant to this Section 7.2(c). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such ten-year period, the Buyer shall, prior to such disposition, give the Seller a reasonable opportunity at the Seller's expense, to segregate and remove such books and records as the Seller may select.
Appears in 1 contract
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier At least three (3) Business Days prior to Closing, in connection with Parent’s issuance of the valid termination Equity Consideration to Seller, Seller and its Affiliates shall cooperate with Parent and Parent’s transfer agent and shall provide all documentation and information required to open an account for Seller with Parent’s transfer agent in order to facilitate the issuance of this Agreement or the Effective TimeEquity Consideration to Seller at Closing.
(b) Following the Execution Date, subject in connection with the Buyer Parties’ filing obligations under applicable securities Laws, Seller and its Affiliates shall cooperate with the Buyer Parties and shall, to the requirements extent not made available to the Buyer Parties as of applicable Law, the Company shall, and shall cause its Subsidiaries toClosing (if not required in accordance with this Agreement), (i) give Acquiror and Merger Sub the Buyer Parties and their respective authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives reasonable access (during regular business hours upon reasonable notice) to such employeesthe books, officesrecords, data centers work papers, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) properties of the Company and its Subsidiaries Group Companies, (ii) permit the Buyer Parties to make such inspections thereof as Acquiror or Merger Sub the Buyer Parties may reasonably request and instruct (iii) cause the Company’s (and its Subsidiaries’) independent public accountants officers of each of the Group Companies to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub the Buyer Parties with such financial and operating operations data and other information with respect to as the business, properties and personnel of the Company as Acquiror or Merger Sub Buyer Parties may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that any such investigation shall be conducted during normal business hours under the supervision of the applicable personnel of Seller or its Affiliates and in such a manner as to not interfere unreasonably with the case operations of clause the Seller and such Affiliates. Neither Seller nor the Group Companies shall be under any obligation to disclose to the Buyer Parties (A) and any information the disclosure of which is restricted by Contract or Law, (B)) any information that, in the Company shallreasonable judgment of Seller, would result in the disclosure of any of Seller’s or its Affiliates’ trade secrets or competitively sensitive information or (C) any information that consists of accounting workpapers or that may adversely affect the attorney-client privilege of Seller or its Affiliates, as the case may be; provided, however, that Seller and its Affiliates shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable arrangements in the circumstances. No investigation pursuant to circumstances where this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretosentence applies.
(bc) All Following the Execution Date, the Parties shall cooperate with each other reasonably and in good faith, and in a timely manner, in connection with all matters set forth on Schedule 3.11, by providing access to all such information obtained and people as may be reasonably requested by Acquiror or Merger Sub pursuant any Party with respect to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreementsuch matters.
Appears in 1 contract
Sources: Purchase Agreement (Nextier Oilfield Solutions Inc.)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, Upon reasonable notice and subject to applicable laws relating to the requirements exchange of applicable Lawinformation, the Company Ravenna shall, and shall cause its Subsidiaries Subsidiary to, (i) give Acquiror and Merger Sub and their authorized afford to the officers, employees, accountants, investment bankerscounsel and other representatives of Buyer, access, during normal business hours during the period prior to the Effective Time, to all its properties, books, contracts, commitments, records, officers, employees, accountants, counsel and other Representatives reasonable access representatives, including the ability to review and test Ravenna's systems that may be impacted by the Year 2000 date change problem, and, during such period, Ravenna shall, and shall cause its Subsidiary to, make available to Buyer (during regular business hours upon reasonable noticei) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries it during such period pursuant to the requirements of the federal Federal or state securities Laws banking laws (other than reports or documents which Ravenna is not permitted to disclose under applicable law) and (ivii) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letterall other information concerning its business, consult with Acquiror with respect to any decisions of a legal nature related thereto properties and prior to the Company or personnel as Buyer may reasonably request. Neither Ravenna nor its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries Subsidiary shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated required to provide access to or to disclose information where such accessaccess or disclosure would violate or prejudice the rights of Ravenna's customers, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an any attorney-client privilege or attorney work product protectioncontravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.
(Bb) would violate an existing confidentiality obligation Upon reasonable notice and subject to any Person or any Law; providedapplicable laws relating to the exchange of information, however, that in the case of clause (A) and (B), the Company Buyer shall, and shall cause its Subsidiaries Subsidiary to, use commercially reasonable efforts afford to obtain any the officers, employees, accountants, counsel and other representatives of Ravenna, access, during normal business hours during the period prior to the Effective Time, to such information regarding Buyer and its Subsidiary as shall be reasonably necessary for Ravenna to fulfill its obligations pursuant to this Agreement to prepare the proxy disclosure or which may be reasonably necessary for Ravenna to confirm that the representations and warranties of Buyer contained herein are true and correct and that the covenants of Buyer contained herein have been performed in all material respects. Neither Buyer nor its Subsidiary shall be required consents to provide access to or to disclose information where such accessaccess or disclosure would violate or prejudice the rights of Buyer's customers, inspectionsjeopardize any attorney-client privilege or contravene any law, data rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply.
(c) All information furnished by Buyer to Ravenna or its representatives pursuant hereto shall be treated as the sole property of Buyer and, if the Merger shall not occur, Ravenna and its representatives shall return to Buyer all of such written information and all documents, notes, summaries or other information and take materials containing, reflecting or referring to, or derived from, such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company . Ravenna shall, and shall cause use its Subsidiaries to, use reasonable best efforts to institute appropriate substitute cause its representatives to, keep confidential all such information, and shall not directly or indirectly use such information for any competitive or other commercial purpose. The obligation to keep such information confidential shall continue for two years from the date the proposed Merger is abandoned and shall not apply to (i) any information which (x) was already in Ravenna's possession prior to the disclosure arrangementsthereof by Buyer; (y) was then generally known to the public; or (z) was disclosed to Ravenna by a third party not bound by an obligation of confidentiality or (ii) disclosures made as required by law. It is further agreed that, if in the absence of a protective order or the receipt of a waiver hereunder Ravenna is nonetheless, in the opinion of its counsel, compelled to disclose information concerning Buyer to any tribunal or governmental body or agency or else stand liable for contempt or suffer other censure or penalty, Ravenna may disclose such information to such tribunal or governmental body or agency without liability hereunder.
(d) All information furnished by Ravenna to the Buyer or its representatives pursuant hereto shall be treated as the sole property of Ravenna and, if the Merger shall not occur, the Buyer and its representatives shall return to Ravenna all of such written information and all documents, notes, summaries or other materials containing, reflecting or referring to, or derived from, such information. The Buyer shall, and shall use its best efforts to cause its representatives to, keep confidential all such information, and shall not directly or indirectly use such information for any competitive or other commercial purpose. The obligation to keep such information confidential shall continue for two years from the date the proposed Merger is abandoned and shall not apply to (i) any information which (x) was already in the Buyer's possession prior to the disclosure thereof by Ravenna; (y) was then generally known to the public; or (z) was disclosed to the Buyer by a third party not bound by an obligation of confidentiality or (ii) disclosures made as required by law. It is further agreed that, if in the absence of a protective order or the receipt of a waiver hereunder the Buyer is nonetheless, in the opinion of its counsel, compelled to disclose information concerning Ravenna to any tribunal or governmental body or agency or else stand liable for contempt or suffer other censure or penalty, the Buyer may disclose such information to such tribunal or governmental body or agency without liability hereunder.
(e) No investigation by either of the parties or their respective representatives shall affect the representations, warranties, covenants or agreements of the other set forth herein.
(f) Ravenna shall give timely notice of and shall permit a representative of Buyer to attend meetings of Ravenna's Board of Directors or the Executive Committee thereof, except to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 that such meeting, or by Acquiror or its Affiliates shall affect or be deemed to modify any representationportion thereof, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject relates to the provisions of the Confidentiality AgreementMerger.
Appears in 1 contract
Access to Information. (a) During From the period from date hereof and through the earlier of the Closing Date or the date of this Agreement continuing until is terminated, Seller shall (i) cooperate with Buyer and shall give Buyer and its representatives (including Buyer’s accountants, consultants, counsel, and employees), upon reasonable notice and during normal business hours, access to the earlier properties, Contracts, equipment, employees, affairs, books, documents, records, data, and other information of Seller to the valid termination extent relating to the Transferred Assets, the Assumed Liabilities, the Business or any other aspect of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shallAgreement, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountantsagents and representatives to furnish to Buyer all available documents, investment bankers, counsel records and other Representatives reasonable access information (during regular business hours upon reasonable notice) and copies thereof), to such employeesthe extent relating to the Transferred Assets, officesthe Assumed Liabilities, data centers and the Business or any other facilities at reasonable times and to such booksaspect of this Agreement, Contractsin each case, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub Buyer may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries Seller shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required and all consents necessary or advisable, including with respect to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementspersonnel files, to permit the extent practicable in the circumstances. No investigation pursuant sharing of such information under applicable Laws); (ii) furnish to this Section 6.03 or by Acquiror Buyer and its representatives (including Buyer’s accountants, consultants, counsel and employees) such information as Buyer or its Affiliates shall affect or be deemed to modify any representationrepresentatives (including Buyer’s accountants, warrantyconsultants, covenant or other agreement made by counsel and employees) reasonably request; and (iii) cooperate reasonably with Buyer in its investigation of the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoTransferred Assets.
(b) All information obtained by Acquiror Prior to and following the Closing Date, Buyer and Seller shall reasonably cooperate to transfer effective as of or Merger Sub pursuant immediately prior to this Section 6.03 shall be subject or subsequent to the provisions Closing the Permits, Regulatory Approvals, any pending applications before a Regulatory Authority and Regulatory Documents and comply in all material respects with the terms of the Confidentiality AgreementPermits and Regulatory Approvals applicable to Seller. Seller shall not consent to or otherwise agree to modify or amend any Permit, Regulatory Approval or pending application before a Regulatory Authority without the prior consent of Buyer (email being sufficient and which consent shall not be unreasonably withheld, conditioned or delayed).
Appears in 1 contract
Access to Information. (a) During Subject to Buyer’s obligations under the period from Confidentiality Agreement, Sellers shall cause the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject Acquired Companies to afford to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel employees and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records authorized representatives of Buyer (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants and attorneys) reasonable access during normal business hours, upon reasonable advance notice, to provide access to their work papers all of the offices, properties, assets and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties regulatory and personnel financial records of the Company Acquired Companies and shall furnish to Buyer or such authorized representatives such additional information concerning the Business as Acquiror or Merger Sub may from time to time shall be reasonably requestrequested, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by including the Company or any of its Subsidiaries during such period pursuant to the requirements technical documentation of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data Products or other information to Product related documents necessary for transferring or obtaining the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawGovernmental Permits; provided, however, that (i) no Seller or Acquired Company shall be required to violate any obligation of confidentiality, Order or Requirements of Law to which such Seller or any Acquired Company is subject or to waive any privilege which any of them may possess in the case of clause discharging its obligations pursuant to this Section 7.1 (A) and (B), the Company but in such event Sellers shall, and shall cause its Subsidiaries any applicable Acquired Company to, use commercially reasonable efforts reasonably cooperate with Buyer to obtain seek an appropriate remedy to permit the access contemplated hereby); (ii) neither Buyer nor any of its officers, employees, agents or representatives shall have access to any employees of the Acquired Companies without Chart US’s prior written consent; (iii) Sellers and the Acquired Companies shall not be required consents to provide such access, inspections, furnish or otherwise make available to Buyer customer-specific data or other information any competitively sensitive information; and take such other action (such as iv) the redaction obligations of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely Sellers pursuant to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and this Section 7.1 shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, be subject to the extent practicable right of each Seller to determine, in its reasonable discretion, the circumstancesappropriate timing of the disclosure of information it deems proprietary commercial information or privileged information. No Buyer hereby acknowledges and agrees that any investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 7.1 shall be subject conducted in such a manner as not to interfere unreasonably with the provisions operations of the Confidentiality AgreementAcquired Companies or Sellers and, for the avoidance of doubt, Buyer shall not be permitted to undertake any environmental sampling or invasive testing without Chart US’s prior written consent, which shall be in Chart US’s sole discretion.
Appears in 1 contract
Access to Information. Except with respect to access for the purposes of the provisions of Article IX which shall be governed solely by Article IX:
(a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject Subject to the requirements restrictions of any applicable LawLaw or contractual undertaking, during the Pre-Closing Period, Seller shall cause the Company shall, and shall cause its Subsidiaries to, to (i) give Acquiror Buyer and Merger Sub and their its authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives reasonable access (during regular business hours upon reasonable notice) to such employeesthe books, officesrecords, data centers work papers, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) properties of the Company and its Subsidiaries Acquired Companies, (ii) permit Buyer to make such inspections thereof as Acquiror or Merger Sub Buyer may reasonably request and instruct (iii) cause the Company’s (and its Subsidiaries’) independent public accountants officers of Acquired Companies to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating operations data and other information with respect to the businessAcquired Companies as Buyer may reasonably request; provided, properties and personnel however, that any such investigation shall be conducted during normal business hours under the supervision of the Company Company’s personnel and in such a manner as Acquiror to maintain the confidentiality of this Agreement and the transactions contemplated by this Agreement and not interfere unreasonably with the business operations of the Acquired Companies.
(b) All information furnished or Merger Sub may from time to time reasonably requestprovided by Seller, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company Acquired Companies or any of their respective Affiliates or representatives to Buyer or its Subsidiaries during such period pursuant representatives (whether furnished before or after the date of this Agreement) shall be held subject to the requirements of Confidentiality Agreement.
(c) Following the federal or state securities Laws Closing and (iv) with respect subject to the matters set forth on Section 6.03(a) restrictions of the Disclosure Letterany applicable Law or contractual undertaking, consult with Acquiror with respect Buyer agrees to any decisions make personnel of a legal nature related thereto and prior to the Company Buyer or its Subsidiaries responding Affiliates available to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information Seller to the extent that such access is reasonably necessary for Seller to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person comply with the terms of this Agreement or any applicable Law; provided, however, that in the case any such access shall be provided only after receipt of clause (A) reasonable advance notice from Seller and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction during normal business hours of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement Buyer’s personnel or the conditions personnel of Acquiror and Merger Sub related theretosuch Affiliate of Buyer.
(bd) All information obtained by Acquiror or Merger Sub pursuant Buyer shall provide Seller with such documentation as Seller may reasonably request to this Section 6.03 shall be subject permit Seller to conduct a reasonable due diligence investigation concerning the provisions financial capability, resources, condition and creditworthiness of the Confidentiality AgreementBuyer.
Appears in 1 contract
Access to Information. (a) During If requested by Seller’s Representative, Buyer shall provide to the period from Sellers’ Representative on a semi-annual basis a written report concerning the date of this Agreement continuing until the earlier status of the valid termination Development Product, including any unachieved Milestones. Buyer shall promptly (but no later than five (5) Business Days following the achievement of this Agreement or a Milestone) notify the Effective TimeSellers’ Representative of the achievement of any Milestone. At the request of the Sellers’ Representative, subject to the requirements of applicable Lawupon reasonable notice and at a reasonable time and location, the Company shallSellers’ Representative shall be entitled to ask, and have answered, reasonable questions about the status of the Development Product. The Sellers’ Representative covenants and agrees to keep secret and retain in strictest confidence, and shall cause its Subsidiaries tonot furnish, make available or disclose to any third party (other than the Sellers) or use for the Sellers’ Representative’s own benefit or the benefit of any third party, any Confidential Information, unless such information (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and was or becomes available to the public from a source other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) than the Sellers’ Representative or any Affiliate of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestSellers’ Representative, (ii) furnish Acquiror is requested to be disclosed by a Governmental Authority or required by Applicable Law or legal process (in which case the Sellers’ Representative shall, to the extent reasonably practicable and Merger Sub legally permissible, provide Buyer with advance notice of such financial required or requested disclosure, shall use commercially reasonable efforts (at Buyer’s sole cost and operating data expense) to resist such disclosure, and, at the request of Buyer, shall cooperate with Buyer, at Buyer’s sole cost and expense, to limit or prevent such disclosure), or (iii) becomes available to the Sellers’ Representative after the date hereof on a non-confidential basis from a source other than the Group Companies, provided, that that such other source is not known by the Sellers’ Representative to be bound by a confidentiality agreement with or other obligation of confidentiality to Buyer or any of its Affiliates with respect to such information. Buyer shall not provide Sellers’ Representative with any material non-public information without first obtaining Sellers’ Representative’s prior written consent that it wishes to receive such material non-public information. Notwithstanding anything herein to the contrary, Sellers’ Representative shall not be permitted to furnish, make available or disclose confidential information received pursuant to this Section 2.8(f) to any Person (other than to the Sellers (but excluding any assignee or transferee of any Seller)) reasonably determined by Buyer to be a competitor of Buyer with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoDevelopment Product.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the period from commencing on the date of this Agreement continuing until hereof and ending on the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Lawupon reasonable notice, the Company Sellers shall, and shall cause the Companies to afford to Purchaser, its Subsidiaries tocounsel, (i) give Acquiror accountants and Merger Sub other authorized representatives reasonable access during normal business hours to the properties, management, books and their authorized records of Sellers and the Companies in order that Purchaser may have the opportunity to make such reasonable investigations as it shall desire to make in connection with the transactions contemplated hereby. Notwithstanding the foregoing, Sellers and the Companies shall not have a duty to provide to Purchaser's officers, employees, accountantscounsel, investment bankers, counsel accountants and other Representatives representatives any such access or provide any such information if and to the extent (i) a Governmental Authority requires the Companies or any of their Subsidiaries to restrict access to any properties or information, (ii) any applicable Law requires the Companies or their Subsidiaries to restrict access to any properties or information, (iii) counsel to the Companies determine in their reasonable access judgment that doing so would result in the disclosure of any trade secrets of third parties or violate any binding obligations to third parties with respect to confidentiality or (during regular business hours iv) counsel to the Companies determines in its reasonable judgment that doing so would compromise or constitute a waiver of any attorney-client or other applicable privilege of the Companies or its Subsidiaries.
(b) After of the date hereof, except as set forth in Section 5.5(b) of the Disclosure Schedule, without the prior consent of the Sellers (which consent need not be in writing and shall not be unreasonably withheld), Purchaser shall not contact any licensees, employees (except pursuant to Section 5.5(a)) or customers of the Sellers or the Companies in connection with or pertaining to any subject matter of this Agreement.
(c) Without limiting any other obligations provided for herein, in order to facilitate the resolution of any Claims made by or against or incurred by the Sellers relating to the Companies or against or incurred by the Companies for which the Sellers have agreed to indemnify Purchaser, after the Closing, upon reasonable notice, Purchaser shall use all reasonable efforts to (i) to such afford the officers, employees, authorized agents and representatives of the Sellers reasonable access, during normal business hours, to the offices, data centers and other facilities at reasonable times and to such booksproperties, Contracts, commitments books and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestCompanies, (ii) furnish Acquiror to the officers, employees, authorized agents and Merger Sub with representatives of the Sellers such additional financial and operating data and other information with respect to regarding the business, properties Companies and personnel of their business and operations as the Company as Acquiror or Merger Sub Sellers may from time to time reasonably request, request and (iii) furnish promptly make available to Acquiror and Merger Sub a copy the Sellers the employees of each reportthe Companies whose assistance, schedule and other document filed testimony or received presence is reasonably requested by the Company Sellers to assist the Sellers in evaluating or any defending such Claims, including the presence of its Subsidiaries during such period pursuant to the requirements of the federal persons as witnesses in hearings or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any trials for such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretopurposes.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier Closing Date: (i) Seller shall provide Buyer and its Representatives with information as to the Business, the Seller’s Interest, the Assigned Agreements and Safe Harbor as reasonably requested by Buyer and to the extent such information is readily available to Seller or could readily be obtained by Seller (including through existing information rights with respect to Safe Harbor) without any material cost or expense or material interference with the Business; provided that, notwithstanding the foregoing, Seller shall not be required to provide any information (A) which Seller reasonably believes it, its Affiliates or Safe Harbor is prohibited from providing to Buyer by reason of applicable Law or Permit, (B) which constitutes or allows access to information protected by attorney/client privilege, or (C) which Seller, its Affiliates or Safe Harbor is required to keep confidential or prevent access to by reason of any contract or agreement with a third party; and (ii) Seller shall provide Buyer and its Representatives with reasonable access to the facilities, properties and management of Safe Harbor as may be requested by Buyer, provided (A) such access shall be conducted at a time and in a manner so as not to unreasonably interfere with the operation of the valid Business, (B) Seller shall have the right to have one or more of its Representatives present at all times during any such access, and (C) any such access shall not include any invasive or destructive environmental testing or sampling. Seller shall provide Buyer with prompt written notice of any meetings of the board of directors of Safe Harbor, including the written schedules, written agenda and written minutes thereto, as well as copies of any written resolutions adopted by the board of directors of Safe Harbor.
(b) All information furnished to or obtained by Buyer and Buyer’s Representatives pursuant to this Section 6.1 shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Nothing in this Section 6.1 is intended to or shall be deemed to amend, supplement or otherwise modify the obligations of Buyer, its Representatives or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of this Agreement or the Effective Time, such agreement in accordance with its terms. Buyer shall be subject to and bound by all obligations of LS Power Equity Advisors, LLC under the requirements of applicable LawConfidentiality Agreement as though Buyer were a party thereto.
(c) From and after the Closing Date, the Company Buyer shall, and shall cause its Subsidiaries Representatives to, afford to Seller, including its Representatives and Affiliates, reasonable access to all books, records, files and documents to the extent they are related to Safe Harbor, the Business or the Assigned Agreements in order to permit Seller and its Affiliates to prepare and file their Tax Returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in any other investigation and defend any Actions relating to or involving Seller or its Affiliates, to discharge its obligations under this Agreement, to comply with financial reporting requirements, and for other reasonable purposes, and will afford Seller and its Affiliates reasonable assistance in connection therewith (including the books and records of Safe Harbor). From and after the Closing, Buyer shall, and Buyer shall take such actions as are within its control to cause Safe Harbor to, cause such records to be maintained for not less than seven years from the Closing Date and not dispose of such records without first offering in writing to deliver them to Seller. In addition, on and after the Closing Date, at Seller’s request, Buyer shall make available to Seller and its Affiliates and Representatives those employees of Buyer (or Safe Harbor) reasonably requested by Seller in connection with any Action, including to provide testimony, to be deposed, to act as witnesses and to assist counsel; provided, however, that (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable such access (during regular business hours upon reasonable notice) to such employeesemployees shall not unreasonably interfere with the normal conduct of the operations of Buyer or Safe Harbor and (ii) Seller shall reimburse Buyer for the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Seller and its Affiliates and Representatives.
(d) From and after the Closing, officesSeller and its Affiliates shall be entitled to retain copies (at Seller’s sole cost and expense) of all books and records relating to its ownership or operation of Safe Harbor and its Business and the Assigned Agreements. For a period of two (2) years from and after the Closing Date, data centers Seller and other facilities at reasonable times its Affiliates shall keep confidential all nonpublic information in any form or medium, written or oral, concerning Safe Harbor and its Business and the Assigned Agreements, and shall not disclose such information to any third parties, except those of Seller’s Representatives who reasonably require access to such booksnonpublic information in connection with the transactions contemplated by this Agreement, Contractsincluding in connection with the enforcement hereof or for financial reporting, commitments and records legal or regulatory compliance or tax purposes (including Tax Returnsprovided Seller shall be responsible for any breach of this provision by any such Representative). If Seller is requested pursuant to, or required by, applicable law, regulation, or by legal or regulatory process or governmental investigation, to disclose any such nonpublic information, Seller shall provide Buyer, unless restricted by applicable law, with prompt notice of such request or requirement in order to enable Buyer to (i) of the Company and its Subsidiaries as Acquiror seek an appropriate protective order or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestremedy, (ii) consult with Seller with respect to Seller taking steps to resist or narrow the scope of such request or legal process, or (iii) waive compliance, in whole or in part, with the terms of this Section 6.1(d). In any such event, Seller shall use its commercially reasonable efforts to ensure that all such nonpublic information will be accorded confidential treatment and shall furnish Acquiror and Merger Sub only that portion of the nonpublic information which is legally required. This Section 6.1(d) shall not apply to any information, documents or materials which are in the public domain or shall come into the public domain, other than by reason of a breach by Seller of its obligations hereunder. Furthermore, nothing herein shall be deemed to limit or restrict Seller from disclosing any information in any action or proceeding by Seller or its Affiliates to the extent necessary to enforce any rights or remedies against Buyer or its Affiliates in connection with such financial and operating data and the transactions contemplated by this Agreement.
(e) Buyer shall not, prior to the Closing Date, contact any customer, vendor or supplier of, or director, officer, partner, member or employee of, or any other information Person having business dealings with, Safe Harbor or Seller or its Affiliates with respect to the businessBusiness or the transactions contemplated hereby, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably requestincluding any Governmental Authority, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (PPL Energy Supply LLC)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable LawSeller will, the Company shall, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives its representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at and properties constituting the Purchased Assets, (ii) permit Buyer to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information available to Seller with respect to the business, properties Business and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, request and (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer a copy of each material report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) Seller with respect to the matters set forth on Section 6.03(a) of Purchased Assets with any Governmental Authority having jurisdiction over the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawPurchased Assets; provided, however, that any such investigation shall be conducted in such a manner as not to interfere unreasonably with the case operation of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoPurchased Assets.
(b) All information obtained Seller agrees (i) not to release any Person (other than Buyer) from any confidentiality agreement now existing with respect to the Purchased Assets or the Business, or waive or amend any provision thereof, and (ii) to assign any rights arising under any such confidentiality agreement (to the extent assignable) to Buyer.
(c) Except as required by Acquiror law, unless otherwise agreed to in writing by Buyer, Seller shall (i) keep all Proprietary Information confidential and not disclose or Merger Sub reveal any Proprietary Information to any Person, and (ii) not use Proprietary Information for any purpose other than consistent with the terms of this Agreement. Seller shall continue to hold all Proprietary Information according to the same internal security procedures and with the same degree of care regarding its secrecy and confidentiality as currently applicable thereto. Seller shall notify Buyer of any unauthorized disclosure to third parties that it discovers, and shall endeavor to prevent any further such disclosures.
(d) After the Closing Date, in the event that Seller is requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary Information, Seller shall use its best efforts to provide Buyer with prompt notice of such request or requirement in order to enable Buyer to seek an appropriate protective order or other remedy, to consult with Seller with respect to taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Section 6.03 6.2(d). Seller agrees not to oppose any action by Buyer to obtain a protective order or other appropriate remedy after the Closing Date. In the event that no such protective order or other remedy is obtained, or Buyer waives compliance with the terms of this Section 6.2(d), Seller shall be subject to the provisions furnish only that portion of the Confidentiality AgreementProprietary Information which Seller is advised by counsel is legally required. In any such event, Seller shall use its Commercially Reasonable Efforts, but at Buyer' s expense, to ensure that all Proprietary Information that is so disclosed will be accorded confidential treatment.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, Seller will, subject to the requirements of applicable LawConfidentiality Agreements, the Company shall, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) use reasonable efforts to give Acquiror and Merger Sub Buyers and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at and properties constituting the Auctioned Assets, (ii) use reasonable times and efforts to permit Buyers to make such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries reasonable inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyers may reasonably request, (iiiii) furnish Acquiror and Merger Sub Buyers with such financial and operating data and other information with respect to the businessAuctioned Assets in the possession of Seller, properties and personnel of the Company as Acquiror or Merger Sub Buyers may from time to time reasonably request, (iiiiv) furnish promptly to Acquiror and Merger Sub Buyers upon request a copy of each material report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure LetterAuctioned Assets filed by Seller with, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)received by Seller from, the Company and its Subsidiaries shall not agree to settle PSC or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawFERC; provided, however, that in the case of clause (A) any such activities shall be conducted in such a manner as not to interfere unreasonably with the operation of the Auctioned Assets, and without duplication by Buyers (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (B)C) Seller need not supply Buyers with (1) any information or access which Seller is under a legal obligation not to supply (2) any information which Seller is not entitled pursuant to the terms of the Conemaugh Operating Agreement, or (3) any information which Seller has previously supplied to Buyers. Notwithstanding anything in this Section 7.2 to the Company shallcontrary, (i) Buyers shall not have the right to perform or conduct any environmental sampling or testing at, in, on, around or underneath the Auctioned Assets and (ii) Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any not be required consents to provide such access, inspections, data access or other information and take such other action (such as the redaction of identifying with respect to any Retained Asset or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoRetained Liabilities.
(b) All information obtained by Acquiror From and after the Closing Date, Buyers shall retain all Operating Records (whether in electronic form or Merger Sub pursuant to this Section 6.03 shall be subject otherwise) relating to the provisions Auctioned Assets on or prior to the Closing Date. Buyers also agree that, from and after the Closing Date, Seller shall have the right, upon reasonable request to Buyers, to have access to, or receive from Buyers copies of, any Operating Records or other information in Buyers' possession relating to the Auctioned Assets on or prior to the Closing Date and required by Seller in order to comply with applicable law. Seller shall reimburse Buyers for their reasonable costs and expenses incurred in connection with the foregoing sentence. If Buyers shall desire to dispose of the Confidentiality Agreementany Operating Records or other information contemplated above, Buyers shall, prior to such disposition, give Seller a reasonable opportunity to segregate and remove such records and information as it may select.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Allegheny Energy Inc)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawPre-Closing Period, the Company Seller Parties shall, and shall cause its Subsidiaries their respective Representatives to, provide the Buyer and the Buyer’s Representatives with reasonable access during normal business hours (iupon reasonable prior written notice), to the management of the Seller Parties and the Acquired Companies, and the books and records of the Seller Parties, the Acquired Companies and the Business Employees; provided, that (a) give Acquiror all such access shall be coordinated through Sidley Austin LLP, (b) such access does not unreasonably interfere with the operation of the Seller Parties’ and Merger Sub the Acquired Companies’ business and their authorized officersshall be subject to the Seller Parties’ reasonable security measures and insurance requirements, (c) the Buyer and its Representatives shall not contact or otherwise communicate, directly or indirectly, with the employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) customers or suppliers of the Company Seller Parties or the Acquired Companies in connection with the Transactions unless, in each instance, approved in writing in advance by the Seller Parties (such consent not to be unreasonably withheld, conditioned or delayed), and its Subsidiaries as Acquiror (d) nothing herein shall require the Seller Parties or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants Acquired Companies to furnish to the Buyer or provide the Buyer with access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to that legal counsel for the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company Seller Parties or any of its Subsidiaries during such period pursuant the Acquired Companies reasonably concludes may give rise to the requirements of the federal antitrust or state securities Laws and (iv) with respect competition Law issues or that is subject to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any applicable Information Privacy and Security Law; provided, howeverthat, that in the case of clause event the Seller Parties withhold access to any such information, the Seller Parties will (A) inform the Buyer that such information has been withheld, and (B), the Company shall, and shall cause ) uses its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data information in a manner which would not be prohibited or other information and take such other action (such as the redaction of identifying which would not violate appliable Law or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid cause the loss of attorney client any privilege) as is necessary to provide such access; provided, data or other information to Acquiror and Merger Sub in compliance with applicable Lawfurther, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, that notwithstanding anything to the extent practicable contrary in the circumstances. No investigation pursuant to this Section 6.03 6.05 or by Acquiror the Confidentiality Agreement, in no event shall the Buyer or its Affiliates shall affect or be deemed to modify restricted in communications with any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoListed Employees.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the period from From and after the date of this Agreement continuing and until the earlier Closing Date, Seller shall give, and cause the Acquired Companies to give, Buyer and its Representatives, reasonable access during the applicable Acquired Company’s normal business hours, without unduly interfering with the normal business operations of Seller or any Acquired Company and upon reasonable advance notice to Seller, to the properties, premises, books, contracts, commitments, reports, records and other financial, operating and other data and information relating to the Business; provided, however, that the independent accountants of Seller or any of the valid termination Acquired Companies shall not be obligated to make any working papers available to Buyer unless and until Buyer has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants. Notwithstanding anything to the contrary in this Agreement, none of Seller nor any of its Affiliates shall be required to disclose any information to Buyer if such disclosure would or could reasonably be expected to: (i) cause significant competitive harm to Seller, the Acquired Companies and their respective businesses if the transactions contemplated in this Agreement are not consummated, (ii) violate or prejudice the rights of Seller’s or such Affiliate’s customers; (iii) jeopardize any attorney-client or other privilege available to Seller or its Affiliates; or (iv) contravene any applicable Law (including with respect to employee medical records, performance evaluations and other confidential employee records) or Order, fiduciary duty or binding agreement entered into prior to the date of this Agreement Agreement; provided, however, that Seller and its Representatives shall use commercially reasonable efforts to make alternative arrangements to afford access in a manner that would not result in loss or the Effective Timewaiver of such privilege, subject including entering into appropriate common interest or similar agreements, contravene such Law or Order or breach fiduciary duty or any binding agreement. Prior to the requirements of applicable LawClosing, the Company Buyer shall, and shall cause its Subsidiaries Representatives to, (ionly use any information obtained pursuant to this Section 6.1(a) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of in accordance with the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect Confidentiality Agreement. Prior to the businessClosing, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld conditioned or delayed. Notwithstanding , Buyer shall not contact any suppliers, customers, landlords or licensors of the foregoingBusiness as it relates to the Business (for the avoidance of doubt, the Company Buyer and its Subsidiaries Affiliates may contact any party relating to the business of Buyer or any of its Affiliates that is unrelated to the Business and without disclosing any information obtained pursuant to this Section 6.1(a)).
(b) From and after the Closing, Buyer shall not be obligated to provide such access, inspections, data or other information preserve and keep the books and records of the Acquired Companies (including all accounting records) to the extent relating to events that occurred prior to do so the Closing for a period of seven (A7) years from the Closing, or for any longer periods as may be required by any Governmental Body or ongoing Action. From and after the Closing, Buyer agrees, upon reasonable prior notice from Seller, during normal business hours and at Seller’s cost and expense, to provide to Seller reasonable access to or copies of books and records of the Acquired Companies to the extent relating to events that occurred prior to the Closing and to the extent needed in connection with accounting, litigation (other than any litigation between Seller or its Affiliates, on the one hand, and Buyer or its Affiliates, on the other hand), financial reporting, federal securities disclosure or StarStone Brazil. Notwithstanding anything to the contrary in this Agreement, none of Buyer nor any of its Affiliates shall be required to disclose any information to Seller if such disclosure would or could reasonably be expected to to: (i) violate or prejudice the rights of Buyer’s or such Affiliate’s customers; (ii) jeopardize an any attorney-client or other privilege available to Buyer or attorney work product protection, its Affiliates; or (Biii) would violate an existing confidentiality obligation contravene any applicable Law (including with respect to any Person employee medical records, performance evaluations and other confidential employee records) or any LawOrder, fiduciary duty or binding agreement; provided, however, that in the case of clause (A) Buyer and (B), the Company shall, and its Representatives shall cause its Subsidiaries to, use commercially reasonable efforts to obtain make alternative arrangements to afford access in a manner that would not result in loss or waiver of such privilege, including entering into appropriate common interest or similar agreements, contravene such Law or Order or breach fiduciary duty or any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretobinding agreement.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and --------------------- the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company shall, Seller shall (and shall cause its the Seller Subsidiaries to, )
(i) during ordinary business hours and upon reasonable notice, give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other the Buyer Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at and properties constituting the Purchased Assets or the Assumed Liabilities; (ii) permit the Buyer and the Buyer representatives to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of inspections thereof as the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) cause its officers and advisors to furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of Purchased Assets or the Company Assumed Liabilities as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer with a copy of each report, schedule and schedule, or other document filed or received by Seller between the Company date of this Agreement and the Closing Date with the SEC, FERC, PUCN, or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) other Governmental Authority with respect to the matters set forth on Section 6.03(aPurchased Assets or the Assumed Liabilities; (v) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the Disclosure Letterrepresentations and warranties of Seller contained in this Agreement; and (vi) at Buyer's reasonable request make available to Buyer and the Buyer Representatives, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to answer questions concerning the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)Purchased Assets, the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without operation of the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionPurchased Assets, or the Assumed Liabilities, personnel of the Seller during ordinary business hours for reasonable time periods at locations reasonably selected by Seller (B) would violate an existing confidentiality obligation such personnel shall be reasonably suited to any Person or any Lawanswer questions based on the scope of their responsibilities); provided, however, that in the case of clause (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client or other privilege, (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply and (B)D) the number of individuals representing Buyer in such inspections at any given time, shall not exceed seven (7) unless Seller consents to a number larger than seven (7) and such consent shall not be unreasonably withheld. Notwithstanding anything in this Section 7.2(a) to the Company contrary, prior to the Closing Date, Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or underneath the Purchased Assets (except for such environmental sampling or testing as Buyer may reasonably deem necessary to investigate (i) the validity of any claims, actions, proceedings or investigations instigated by any Governmental Authority on or after the date hereof with respect to any alleged violation of Environmental Laws or (ii) any other environmental condition arising or occurring on or after the date hereof which Buyer reasonably believes may constitute a violation of Environmental Laws.
(b) The Parties agree that between the date hereof and the Closing Date, at the sole responsibility and expense of Buyer, Seller shall, and shall cause its the Seller Subsidiaries to, use commercially permit designated representatives ("Observers") of Buyer to regularly observe, in the presence of personnel of Seller and at Buyer's reasonable efforts discretion, all operations of Seller and the Seller Subsidiaries that relate specifically to obtain the Purchased Assets, and the operation thereof, and to observe material discussions with third parties relating specifically to the Purchased Assets or the Assumed Liabilities; provided, however, that (A) any required consents such observations shall be conducted in such a manner as not to provide such accessinterfere unreasonably with the operation of the Purchased Assets, inspections, data (B) Buyer shall not be entitled to observe any discussions between Seller and its legal counsel or accountants and shall not otherwise be entitled to observe any activities or discussions which may constitute a waiver of the attorney-client or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise (C) Seller need not permit the Company shallObservers to observe or participate in discussions concerning any information which Seller are under a legal or contractual obligation not to disclose. The Observers may recommend or suggest that actions be taken or not be taken by Seller; provided, however, that Seller will be under no obligation to follow any such recommendations or suggestions and that Seller shall cause its Subsidiaries tobe entitled, use reasonable best efforts subject to institute appropriate substitute disclosure arrangementsthe terms of this Agreement, to conduct their business in accordance with their own judgment and discretion. The Observers shall have no authority to bind or make agreements on behalf of Seller or any Seller Subsidiaries, to conduct discussions with or make representations to third parties on behalf of Seller or any Seller Subsidiaries or to issue instructions to or direct or exercise authority over Seller or any Seller Subsidiaries or any of their respective officers, employees, advisors or agents.
(c) All information furnished to or obtained by the extent practicable in Buyer and the circumstances. No investigation Buyer Representatives pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Evaluation Material" (as defined in the Confidentiality Agreement).
(d) For a period of ten (10) years after the Closing Date, the Seller and its representatives shall have reasonable access to all of the books and records of the Purchased Assets, as the case may be, transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operation of the Purchased Assets prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by them pursuant to this Section 7.2(d). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such ten-year period, the Buyer shall, prior to such disposition, give the Seller a reasonable opportunity at the Seller's expense, to segregate and remove such books and records as the Seller may select.
Appears in 1 contract
Access to Information. (a) During Prior to the closing, ACI and its representatives may make such reasonable investigation of CHH as it may desire, and the Stockholder shall cause CHH to give to ACI and to its counsel, accountants and other representatives reasonable access during normal business hours throughout the period from prior to the date of this Agreement continuing until the earlier closing to all of the valid termination assets, books, commitments, agreements, records and files of this Agreement CHH, and CHH promptly shall furnish to ACI during that period all documents and copies of documents (certified as true and complete if requested) and information concerning the business and affairs of CHH as ACI reasonably may request; provided that CHH shall not be required to disclose to ACI or the Effective Timeany representative of ACI that information, subject in electronic form or otherwise, that is proprietary to the requirements clients or customers of CHH or where such disclosure would violate applicable Law, the Company shalllaw. ACI shall (unless otherwise required by applicable law) hold, and shall cause its Subsidiaries torepresentatives to hold, all such information and documents and all other information and documents delivered pursuant to this agreement confidential and, if the transactions contemplated by this agreement are not consummated for any reason, shall return to CHH all such information and documents and any copies as soon as practicable and shall not disclose any such information (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and that has not previously been disclosed by a party other Representatives reasonable access (during regular business hours upon reasonable noticethan ACI or its affiliates) to such employees, offices, data centers any third party unless required to do so pursuant to a request or order under applicable laws and regulations or pursuant to a subpoena or other facilities at reasonable times and to such books, Contracts, commitments and records legal process. ACI’s obligations under this section shall survive the termination of this agreement.
(including Tax Returnsb) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect Prior to the businessclosing, properties and personnel ACI shall provide to CHH such reasonable business records as CHH may desire regarding the financial ability of ACI to consummate the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received transactions contemplated by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide commentsthis Agreement; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent ACI shall not be unreasonably withheld required to disclose to CHH that information, in electronic form or delayed. Notwithstanding the foregoingotherwise, the Company and its Subsidiaries shall not be obligated that is proprietary to provide clients or customers of ACI or where such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) disclosure would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause applicable law. CHH shall (Aunless otherwise required by applicable law) and (B), the Company shallhold, and shall cause its Subsidiaries torepresentatives to hold, use commercially reasonable efforts to obtain any required consents to provide all such access, inspections, data or information and documents and all other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation documents delivered pursuant to this Section 6.03 or agreement confidential and, if the transactions contemplated by Acquiror this agreement are not consummated for any reason, shall return to ACI all such information and documents and any copies as soon as practicable and shall not disclose any such information (that has not previously been disclosed by a party other than CHH or its Affiliates shall affect affiliates) to any third party unless required to do so pursuant to a request or be deemed order under applicable laws and regulations or pursuant to modify any representation, warranty, covenant a subpoena or other agreement made by legal process. CHH’s obligations under this section shall survive the Company in termination of this Agreement or the conditions of Acquiror and Merger Sub related theretoagreement.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Crystal International Travel Group, Inc.)
Access to Information. (a) During Subject to the period from the date of this Agreement continuing until the earlier provisions of the valid termination of this Agreement or Confidentiality Agreement, Seller shall afford the Effective Time, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel attorneys and other Representatives authorized representatives of Buyer reasonable access (during regular at reasonable business hours upon reasonable notice) to such employeesthe facilities, officesproperties, data centers and other facilities at reasonable times and to such books, Contracts, commitments books and records (including Tax Returns) of the Company and its Subsidiaries Business. Other than as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestdescribed in Schedule 4.4, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries Closing Date Buyer shall not agree to settle communicate with any customer, supplier, agent, co-owner or provide any remedy with regard to any such matters joint venture partner ("REPRESENTATIVES") of Seller, its Subsidiaries, or the Business about the Transaction or about the Business without the prior written consent of Acquirorthe Seller, which consent shall not be unreasonably withheld or delayed. Notwithstanding The officers of Seller shall furnish Buyer with such additional financial and operating data and other information relating to the foregoingbusiness, properties and assets of the Company Business as Buyer may reasonably request from time to time. Buyer shall be entitled, at its sole cost and expense, to: (i) have the Owned Real Property surveyed or; (ii) to conduct physical inspections (including Phase I environmental assessments or audits, but excluding invasive testing or other procedure likely to result in a release, spill, emission, draining or discharge of any Hazardous Materials that may exist) of the Owned or Leased Real Property or improvements located thereon; PROVIDED, HOWEVER, that, whether or not the Transaction is consummated, except as otherwise expressly set forth in this Agreement, all costs and expenses of the tests and acts described in this Section 4.4 shall be borne solely by Buyer; PROVIDED, FURTHER, that Buyer shall indemnify, defend, and hold Seller and its Subsidiaries free and harmless from and against any Losses related to any physical injury or damage to persons or property arising out of any such survey or inspection. Buyer's liabilities and obligations under this Section 4.4 shall survive termination of this Agreement pursuant to any provision of this Agreement; and, PROVIDED, FURTHER, that so long as the Closing shall not be obligated have occurred, Seller may, at its sole discretion, refuse to provide such accessgrant Buyer access to facilities, inspectionsproperties, data books and records of the Business relating to (i) Excluded Assets or (ii) any proprietary or confidential technology or know how, or any contracts or research and development activities of the Business, which are expressly subject to confidentiality obligations or agreements with third parties. No investigation by Buyer or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege received by Buyer shall operate as a waiver or attorney work product protectionotherwise affect any representation or warranty or agreement, given or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoSeller hereunder.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Agreement for Sale and Purchase of Assets (Noveon Inc)
Access to Information. (a) During Prior to the period from Closing Date and subject to applicable Laws (including the date of this Agreement continuing until Pandemic Measures) and Section 6.5, Purchaser shall be entitled, through its officers, employees and Representatives (including its legal advisors and accountants), to have such access to the earlier personnel, properties, businesses and operations of the valid termination Company and such examination of the books and records of the Company, as it reasonably requests upon reasonable advance written notice in connection with Purchaser’s efforts to consummate the transactions contemplated by this Agreement or Agreement. Any such access and examination shall be conducted during regular business hours and under circumstances that do not unreasonably interfere with the Effective Time, normal operations of the business and shall be subject to restrictions under applicable Law (including the requirements of applicable Law, Pandemic Measures). Seller and the Company shall, and shall cause its the Acquired Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other the respective Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)Seller, the Company and its the Acquired Subsidiaries shall not agree to, cooperate with Purchaser and Purchaser’s Representatives in connection with such access and examination. Notwithstanding anything to settle or provide any remedy with regard to the contrary in this Agreement, any such matters without the prior written consent of Acquiror, which consent shall not access may be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information limited to the extent Seller reasonably determines that to do so (A) could such access would reasonably be expected to jeopardize an the health or safety of any employee of Seller or its Affiliates due to the Pandemic or Pandemic Measures. Any disclosure during such investigation by the Company or its Representatives shall not constitute any enlargement or additional representation or warranty of Seller or the Company beyond those specifically set forth in Article IV. Notwithstanding anything herein to the contrary, no such access or examination shall be permitted to the extent that it (i) relates to interactions with other prospective buyers of the Company or the negotiation of this Agreement and the transactions contemplated hereby, (ii) would unreasonably disrupt the operations of Seller, its Subsidiaries or any of the Acquired Companies, or (iii) would require Seller, its Subsidiaries or any of the Acquired Companies to disclose information that, in the reasonable judgment and good faith of counsel to Seller or the Company, is subject to attorney-client privilege or attorney work product protectionmay conflict with any applicable Law or confidentiality obligations to which any of Seller, its Subsidiaries or (B) would violate an existing confidentiality obligation to any Person or any Lawthe Acquired Companies is bound; provided, however, that in if any material information concerning the case of Company Business is withheld pursuant to the foregoing clause (A) and (Biii), Seller will work with Purchaser in good faith to make the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts substance of such information available to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror Purchaser or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoRepresentatives.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject Notwithstanding anything to the provisions contrary contained herein, prior to the Closing, Purchaser shall not, without the written consent of the Confidentiality AgreementCompany, (i) contact any customers of the Company Business, other than in the ordinary course of business of Purchaser or any of its Affiliates with respect to matters not involving the Company Business, any of the Transaction Agreements or the transactions contemplated hereby or thereby, and provided that Seller or the Company shall have the right to have a Representative present during any such contact in the event that it consents to such contact, and (ii) have any right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies.
Appears in 1 contract
Sources: Securities Purchase Agreement (Ingersoll Rand Inc.)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable LawBHGE will, the Company shall, and shall cause its Subsidiaries toupon reasonable advanced written notice, (i) give Acquiror and Merger Sub and their authorized officersGE, employeesits counsel, accountantsfinancial advisors, investment bankers, counsel auditors and other Representatives authorized representatives reasonable access (during regular business hours upon reasonable notice) to such employees, the offices, data centers and other facilities at reasonable times and to such booksproperties, Contracts, commitments books and records (including Tax Returns) of BHGE relating to the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestBHGE Contributed Business, (ii) furnish Acquiror to GE, its counsel, financial advisors, auditors and Merger Sub with other authorized representatives such financial and operating data and other information with respect relating to the business, properties BHGE Contributed Business as such Persons may reasonably request and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly instruct the employees, counsel and financial advisors of BHGE to Acquiror and Merger Sub a copy cooperate with GE in its investigation of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period BHGE Contributed Business. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the requirements conduct of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) business of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedBHGE. Notwithstanding the foregoing, the Company and its Subsidiaries GE shall not be obligated have (A) access to provide such accesspersonnel records of BHGE relating to individual performance or evaluation records, inspections, data medical histories or other information which, in BHGE’s good faith opinion, is sensitive or the disclosure of which could subject BHGE to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionrisk of liability, or (B) would violate an existing confidentiality access to BHGE systems nor (C) the right to conduct subsurface or invasive environmental sampling on any of the properties owned or operated by BHGE, including the BHGE Contributed Facilities. BHGE shall have no obligation under this Section 5.03(a) to any Person or any Law; provided, however, provide financial information that is not produced in the case ordinary course of clause (A) business. Any request for information by GE shall be made for purposes of achieving the Closing and (B), the Company shallpost-Closing integration, and no such requests shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretofor due diligence purposes.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject On and after the Closing Date, BHGE will afford promptly to the provisions Company and its respective agents reasonable access to its books of account, financial and other records (including accountant’s work papers), information, employees and auditors to the extent necessary or useful for the Company in connection with any audit, investigation, dispute or litigation or any other reasonable business purpose relating to the BHGE Contributed Business; provided, that any such access by the Company shall not unreasonably interfere with the conduct of the Confidentiality Agreementbusiness of BHGE. The Company shall bear all of the out-of-pocket costs and expenses (including attorneys’ fees, but excluding reimbursement for general overhead, salaries and employee benefits) reasonably incurred in connection with the foregoing.
Appears in 1 contract
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, each Seller will (i) give Acquiror and Merger Sub and their authorized officersBuyer, employeesits counsel, accountantsfinancial advisors, investment bankers, counsel auditors and other authorized Representatives reasonable access (during regular normal business hours upon reasonable notice) to such employees, the offices, data centers and other facilities at reasonable times and to such booksproperties, Contracts, commitments books and records (including Tax Returns) of each Seller and Transferred Subsidiary relating to the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestBusiness, (ii) furnish Acquiror to Buyer, its counsel, financial advisors, auditors and Merger Sub with other authorized Representatives such financial and operating data and other information with respect relating to the business, properties Business as such Persons may reasonably request and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror instruct the employees, counsel and Merger Sub a copy financial advisors of each reportSeller or Transferred Subsidiary to cooperate with Buyer in its reasonable investigation of the Business; provided that all contact with employees of any Seller or Transferred Subsidiary pursuant to this Section 5.02 shall be made through individuals previously designated by ACI to Buyer, schedule and other document filed or received by the Company or Buyer agrees that it will not, and it will not permit any of its Subsidiaries during such period pursuant Affiliates or their respective counsel, financial advisors, auditors or other Representatives, to contact any customers, suppliers, business partners or employees of any Asset Seller, any Transferred Subsidiary or the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters Business without the prior written consent of AcquirorACI, which consent shall not be unreasonably withheld withheld. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of any Asset Seller or delayedTransferred Subsidiary. Notwithstanding the foregoing, the Company and its Subsidiaries Buyer shall not be obligated have access to provide such accesspersonnel records of any Asset Seller or Transferred Subsidiary relating to individual performance or evaluation records, inspections, data medical histories or other information to the extent that to do so (A) disclosure of which is prohibited by applicable law or could reasonably be expected to jeopardize an attorney-client privilege subject any Asset Seller or attorney work product protectionTransferred Subsidiary to risk of liability. Nothing in this Agreement shall require ACI or AI, or (B) would violate an existing confidentiality obligation any of their respective Subsidiaries to disclose to Buyer or its Representatives any Person confidential information that ACI or AI or any Lawof their respective Subsidiaries is advised by counsel it is prohibited from disclosing to Buyer pursuant to applicable law or contract (other than a Contract) or the disclosure of which would impair protection afforded by a lawful privilege; providedprovided that ACI, howeverAI, that in or such Subsidiary, as applicable, shall provide Buyer with notice of the case existence of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take a detailed summary of the contents of such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, records to the extent practicable in not inconsistent with the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoforegoing.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, Sellers will (i) during ordinary business hours and upon reasonable notice, give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other its Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plans, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of properties constituting the Company and its Subsidiaries as Acquiror Purchased Assets or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, Assumed Liabilities; (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of Purchased Assets or the Company Assumed Liabilities as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iii) furnish promptly to Acquiror and Merger Sub Buyer with a copy of each material report, schedule and schedule, or other document filed or received by each Seller with the Company SEC, FERC, PaPUC, or any of its Subsidiaries during such period pursuant other Governmental Authority with respect to the requirements of Purchased Assets or the federal or state securities Laws Assumed Liabilities; and (iv) furnish Buyer with respect all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the representations and warranties of Sellers contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Sellers shall not be required to take any action which would constitute a waiver of the attorney-client or other privilege, and (C) Sellers need not supply Buyer with any information which Sellers are under a legal or contractual obligation not to supply. Notwithstanding anything in this Section 6.2 to the matters set forth contrary, prior to the Closing Date, Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or underneath the Purchased Assets (except for such environmental sampling or testing as Buyer may reasonably deem necessary to investigate (i) the validity of any claims, actions, proceedings or investigations instigated by any Governmental Authority on Section 6.03(a) of or after the Disclosure Letter, consult with Acquiror date hereof with respect to any decisions alleged violation of Environmental Laws or (ii) any other environmental condition arising or occurring on or after the date hereof which Buyer reasonably believes may constitute a legal nature violation of Environmental Laws) and Sellers will only furnish or provide such access to employee personnel records and files to the extent that such records and files pertain to the following: (i) skill and development training; (ii) seniority histories; (iii) salary and benefit information; (iv) Occupational, Safety and Health Administration reports; (v) active medical restriction forms; and (vi) disciplinary and attendance histories.
(b) All information furnished to or obtained by Buyer and Buyer's Representatives pursuant to this Section 6.2 shall be Proprietary Information. Each Party shall, and shall cause its Representatives to, (a) keep all Proprietary Information of the other Party confidential and not disclose or reveal any such Proprietary Information to any Person other than such Party's Representatives and (b) not use such Proprietary Information other than in connection with the consummation of the transactions contemplated hereby. After the Closing Date, any Proprietary Information solely related thereto to the Purchased Assets shall no longer be subject to the restrictions set forth herein. The obligations of the Parties under this Section 6.2(b) shall be in full force and effect for three (3) years from the date hereof and will survive the termination of this Agreement, the discharge of all other obligations owed by the Parties to each other and the Closing of the transactions contemplated by this Agreement.
(c) For a period of seven (7) years after the Closing Date, each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the Company or its Subsidiaries responding expiration of such seven-year period, such Party shall, prior to any request or submitting any documentation in response theretosuch disposition, provide Acquiror give the other Party a reasonable opportunity at such other Party's expense, to review segregate and remove such books and records as such other Party may select.
(d) Notwithstanding the terms of Section 6.2(b) above, the Parties agree that prior to the Closing, Buyer may reveal or disclose Proprietary Information to any such submission, response or related documentation and provide comments; other Persons in connection with Buyer's financing of its purchase of the Purchased Assets (provided that such Persons agree in writing to maintain the confidentiality of the Proprietary Information in accordance with this Agreement).
(e) Notwithstanding the terms of Section 6.2(b) above, any Party may provide Proprietary Information of the other Parties to the PaPUC, the SEC, the FERC or any other Governmental Authority with jurisdiction or any stock exchange, as may be necessary to obtain Sellers' Required Regulatory Approvals or Buyer's Required Regulatory Approvals, respectively, or to comply generally with any relevant Laws. The disclosing Party will seek confidential treatment for the Proprietary Information provided to any Governmental Authority and the disclosing Party will notify the other Parties as far in advance as is practicable of its intention to release to any Governmental Authority any Proprietary Information.
(f) Except as specifically provided herein or in the Confidentiality Agreement, nothing in this Section shall impair or modify any of the rights or obligations of Buyer or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(g) Except as may be permitted in the Confidentiality Agreement, Buyer agrees that, prior to the Closing Date, it will not contact any vendors, suppliers, employees, or other contracting parties of Sellers or their Affiliates with respect to this clause (iv)any aspect of the Purchased Assets or the transactions contemplated hereby, the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSellers, which consent shall not be unreasonably withheld or delayedwithheld.
(h) A committee comprised of one Representative designated by Sellers and one Representative designated by Buyer, and such additional Representatives as may be appointed by the Representatives originally appointed to such committee (the "Transition Committee") will be established, -------------------- as soon after the execution of this Agreement as is practicable, to examine the business issues affecting the Purchased Assets, including the operations thereof, giving emphasis to cooperation between Buyer and Sellers after the execution of this Agreement. Notwithstanding the foregoingFrom time to time, the Company and Transition Committee shall report its Subsidiaries shall not be obligated to provide such access, inspections, data or other information findings to the extent senior management of each of Sellers and Buyer.
(i) The Parties agree that between the date hereof and the Closing Date, at the sole responsibility and expense of Buyer, Sellers will permit designated Representatives ("Observers") of Buyer to do so (A) could reasonably be expected regularly observe, --------- in the presence of personnel of Sellers and at Buyer's reasonable discretion, all operations of Sellers that relate specifically to jeopardize an attorney-client privilege or attorney work product protectionthe Purchased Assets, or (B) would violate an existing confidentiality obligation and the operation thereof, and to any Person or any Lawobserve material discussions with third parties relating specifically to the Purchased Assets; provided, however, that in the case of clause -------- -------
(A) any such observations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Buyer shall not be entitled to observe any discussions between any Seller and its legal counsel or accountants and shall not otherwise be entitled to observe any activities or discussions which may constitute a waiver of the attorney- client or other privilege, and (B)C) Sellers need not permit the Observers to observe or participate in discussions concerning any information which Sellers are under a legal or contractual obligation not to disclose. The Observers may recommend or suggest that actions be taken or not be taken by Sellers; provided, the Company shallhowever, and shall cause its Subsidiaries to, use commercially reasonable efforts that Sellers will be under no obligation to obtain follow any such -------- ------- recommendations or suggestions (except as required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub remain in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation Sellers' obligations pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror 6.1 hereof) and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 that Sellers shall be entitled, subject to the provisions terms of the Confidentiality this Agreement, to conduct their business in accordance with their own judgment and discretion. The Observers shall have no authority to bind or make agreements on behalf of Sellers, to conduct discussions with or make representations to third parties on behalf of Sellers or to issue instructions to or direct or exercise authority over Sellers or any of their respective officers, employees, advisors or agents.
Appears in 1 contract
Access to Information. (a) During the period from the date of this Agreement continuing until to the earlier of the valid termination of this Agreement in accordance with Article 11 or the Effective TimeClosing Date, subject to the requirements of applicable Lawupon reasonable prior notice, the Company shall, Seller shall and shall cause the Seller Subsidiaries to afford Buyer and its Subsidiaries to, authorized Representatives reasonable access during normal business hours to (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) the personnel engaged in the conduct of the Company Business and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the businessbooks, properties and personnel of the Company as Acquiror records or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information Contracts to the extent that relating exclusively to do so the Business (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Lawother than the Excluded Assets); provided, however, that any such access or furnishing of information shall be conducted at Buyer’s expense without reimbursement from Seller or its Affiliates, under the supervision of Seller’s personnel and in such a manner as not unreasonably to interfere with the case normal operations of clause (A) and (B)Seller or any Seller Subsidiary. For the avoidance of doubt, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts any information furnished or made available by Seller to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation Buyer pursuant to this Section 6.03 or 5.4(a) shall be treated as Seller Proprietary Information (as defined in the letter agreement, dated as of August 30, 2018, by Acquiror and between Seller and Buyer (the “Confidentiality Agreement”)) and shall be treated in accordance with the Confidentiality Agreement. Notwithstanding anything to the contrary in this Agreement, Seller and any Seller Subsidiary shall not be required to disclose any information to Buyer or its Affiliates shall affect or be deemed to modify Representatives if such disclosure would, in Seller’s sole discretion, (A) jeopardize any representation, warranty, covenant attorney-client or other legal privilege, (B) contravene any applicable Laws (including applicable privacy or data protection Laws), fiduciary duty or binding agreement made entered into prior to the date hereof, or (C) relate solely to any income Tax Return or related work papers filed or prepared by the Company in this Agreement or the conditions with respect to Seller or solely to any Tax Return or related work papers prepared by or with respect to any predecessor entity of Acquiror and Merger Sub related theretoSeller.
(b) All information provided or obtained pursuant to Section 5.4(a) shall be held by Acquiror or Merger Sub Buyer in accordance with and subject to the terms of the Confidentiality Agreement, until the Closing Date except such information as was provided to Seller subject to an obligation of confidentiality which shall remain confidential per the terms of each respective agreement.
(c) Any information provided pursuant to this Section 6.03 5.4 shall be subject not affect or otherwise diminish or obviate in any respect, or affect Buyer’s right to the provisions rely upon, any of the Confidentiality representations, warranties or covenants contained in this Agreement or the indemnification rights contained in this Agreement.
Appears in 1 contract
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier of the valid Closing Date or the termination of this Agreement or the Effective Timein accordance with its terms, subject to the requirements of applicable Law, the Company shall, Sellers shall (and shall cause the Acquired Companies to) (a) provide to the Purchaser, its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, legal counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, the offices, data centers properties and Books and Records, (b) furnish to the Purchaser, its legal counsel and other facilities at reasonable times and Representatives such information relating to the Business as such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub Persons may reasonably request and instruct (c) cause the Companyemployees, legal counsel, accountants and Representatives of the Acquired Companies to reasonably cooperate with the Purchaser in its investigation of the Business; provided that no investigation pursuant to this Section (or any investigation prior to the date hereof) shall affect any representation or warranty given by Sellers regarding any Acquired Company or any Purchaser Indemnitee’s right to indemnification under this Agreement for breach thereof and, provided further, that any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business.
(and its Subsidiaries’b) independent public accountants Notwithstanding the foregoing, nothing herein shall require the Acquired Companies to provide access to, or to their work papers and disclose any information to, the Purchaser if such other information as Acquiror access or Merger Sub may reasonably requestdisclosure, in Sellers’ Representative’s reasonable discretion at the advice of outside counsel, (iix) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect would cause significant competitive harm to the business, properties and personnel any of the Company as Acquiror or Merger Sub may from time to time reasonably requestAcquired Companies if the transactions contemplated by this Agreement are not consummated, (iiiy) furnish promptly would require the Acquired Companies to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by disclose information regarding the Company or any of its Subsidiaries during such period pursuant to the requirements Affiliates of the federal Acquired Companies that the Acquired Companies deems to be commercially sensitive, or state securities Laws and (ivz) with respect to would be in violation of applicable laws or regulations of any Authority (including the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (ivHSR Act), the Company and its Subsidiaries in which case, such materials shall not agree be provided solely to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedPurchaser’s outside counsel for review. Notwithstanding the foregoing, nothing herein shall require the Company and its Subsidiaries shall not be obligated Acquired Companies to provide access to, or to disclose any information to, the Purchaser if such accessdisclosure would, inspectionsin Sellers’ Representative’s reasonable discretion at the advice of outside counsel, data or other information to the extent that to do so (Ai) could reasonably be expected to jeopardize an attorney-client waive any applicable legal privilege or attorney work product protection(ii) is prohibited under the provisions of any agreement to which any of the Acquired Companies is a party. If any access or information is withheld on the basis of the foregoing sentence, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in Sellers’ Representative will inform Purchaser of the case general nature of clause (A) what is being withheld and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents make substitute disclosure arrangements to provide any such access, inspections, data access or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror Purchaser and Merger Sub its Representatives in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify a manner that will not suffer from any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreementforegoing impediments.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (RumbleOn, Inc.)
Access to Information. From the date hereof until the Closing, Seller shall (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, afford Buyer and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesand the right to inspect all of the Leased Real Property, officesproperties, data centers assets, premises, Books and Records, Assigned Contracts and other facilities at reasonable times documents and data related to such books, Contracts, commitments and records the Business; (including Tax Returnsb) of the Company promptly furnish Buyer and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub Representatives with such financial financial, operating and operating other data and other information with respect related to the business, properties and personnel of the Company Business as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company Buyer or any of its Subsidiaries during such period pursuant Representatives may reasonably request; and (c) instruct the Representatives of Seller to the requirements cooperate with Buyer in its investigation of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawBusiness; provided, however, that any such investigation shall be conducted during normal business hours upon reasonable advance notice to Seller, under the supervision of Seller’s personnel and in such a manner as not to interfere with the case conduct of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain Business or any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction businesses of identifying or confidential information, entry into a joint defense agreement or other agreement or Seller. All requests by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub ▇▇▇▇▇ for access pursuant to this Section 6.03 shall be subject submitted or directed exclusively to the provisions Chief Executive Officer or such other individuals as Seller may designate in writing from time to time. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to disclose any information to Buyer if such disclosure would, in Seller’s sole discretion after consultation with legal counsel: (x) jeopardize any attorney-client or other privilege provided, that, to the extent any information is withheld pursuant to any applicable privileges (including the attorney-client privilege) the, Seller will promptly provide Buyer with a privilege log or summary describing with reasonable specificity the topics and general nature of the information withheld and why it is being withheld, and shall take such actions as Buyer and Seller shall mutually agree, acting in good faith, to allow Buyer (or its Representatives, if applicable) to gain access to such information without losing any privilege; (y) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement; or (z) reveal bids received from third parties in connection with transactions similar to those contemplated by this Agreement and any information and analysis (including financial analysis) relating to such bids. Prior to the Closing, without the prior written consent of Seller, which may be withheld for any reason, Buyer shall not contact any suppliers to, or customers of, the Business and Buyer shall have no right to perform invasive, destructive or subsurface investigations of the Leased Real Property or any other environmental sampling (such as indoor air sampling). Buyer shall, and shall cause its Representatives to, abide by the terms of the Confidentiality Agreement with respect to any access or information provided pursuant to this Section 6.03. No investigation by Buyer shall affect Seller’s representations, warranties, covenants, or agreements contained herein, or limit or otherwise affect the remedies available to Buyer pursuant to this Agreement.
Appears in 1 contract
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimePre-Closing Period, subject to the requirements of applicable Law, the Company Sellers shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries Acquired Companies to, use commercially reasonable efforts to obtain provide Buyer and its Representatives with reasonable access to (i) all of the Acquired Companies’ properties, assets, books and records, (ii) all senior management of the Acquired Companies and (iii) any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information relating solely to outside counsel the business, properties, assets, books and records and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to avoid this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the loss normal operations of attorney client privilegethe Acquired Companies, (C) as is necessary to provide such access, data coordinated through the Company’s chief executive officer or other information to Acquiror designee thereof and Merger Sub in compliance with applicable Law(D) conducted at Buyer’s sole cost and expense, and otherwise Sellers shall have the Company right to have one or more of their Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). During the Pre-Closing Period, the Sellers shall, and shall cause its Subsidiaries the Acquired Companies to, use commercially reasonable best efforts to institute appropriate substitute disclosure arrangementscause its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Buyer in its investigation of the Acquired Companies. Notwithstanding anything to the extent practicable contrary contained herein, during the Pre-Closing Period, neither Sellers nor any Acquired Company shall be required to provide access or disclose information where such access or disclosure would, in Sellers’ reasonable judgment, (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers or any Acquired Company or (2)(x) conflict with any Law or Order applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company or (y) materially breach any Contract (with respect to the obligations placed therein on the applicable Acquired Company) to which an Acquired Company is party or by which any of the Acquired Companies’ assets or properties are bound; provided, however, that, in such instances, Sellers shall inform Buyer of the general nature of the information being withheld and, upon Buyer’s request and at Buyer’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the circumstancesforegoing clauses (1) or (2). No investigation pursuant Notwithstanding anything to this Section 6.03 the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent shall not be unreasonably withheld, conditioned or by Acquiror or delayed), (x) Buyer shall not, and shall cause its Affiliates shall affect and its Representatives not to, contact any vendor, supplier or be deemed to modify any representationcustomer of an Acquired Company regarding the business, warrantyoperations, covenant or other agreement made by prospects of the Company in Acquired Companies or this Agreement or the conditions transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of Acquiror and Merger Sub related theretothe properties or facilities of any Acquired Company.
(b) All Buyer will hold any information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of 5.2(a) in confidence in accordance with the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Millicom International Cellular Sa)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable LawSeller will, the Company shall, during ordinary business hours and shall cause its Subsidiaries toupon reasonable notice, (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Buyer’s Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesthe properties, officescontracts, data centers books, records and other facilities at reasonable times personnel of each of the Acquired Entities to which Buyer is not denied access by Law and to such books, Contracts, commitments and records (including Tax Returns) which Seller has the right to grant access without the consent of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s any other Person (and its Subsidiaries’) independent public accountants to provide access to their work papers in the case where consent of another Person is required, only on such terms and conditions as may be imposed by such other information Person); (ii) permit Buyer to make such reasonable inspections thereof as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Business as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer with a copy of each material report, schedule and schedule, or other document filed by any Acquired Entity with, or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure LetterAcquired Entity from, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawGovernmental Entity; provided, however, that in the case of clause (A) any such investigation will be conducted in such a manner as not to interfere unreasonably with the operation of the Business or any other Person, (B) Buyer will indemnify and hold harmless Seller and each of the Acquired Entities from and against any Losses caused to Seller and/or any of the Acquired Entities by any action of Buyer or Buyer’s Representatives while present on any of the premises to which Buyer is granted access hereunder (including restoring any such premises to the condition substantially equivalent to the condition such premises were in prior to any such investigation), (C) neither Seller nor any of its Affiliates will be required to take any action which would constitute a waiver of the attorney-client privilege, and (B), D) neither Seller nor any of the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain Acquired Entities need supply Buyer with any required consents to provide such access, inspections, data information which Seller is under a contractual or other information and take such other action legal obligation not to supply; provided, however, if Seller relies upon clauses (such as the redaction of identifying C) or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege(D) as is necessary a basis for withholding information from disclosure to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsBuyer, to the fullest extent practicable possible without causing a waiver of the attorney-client privilege, or a violation of a contractual or legal obligation, as the case may be, Seller will provide Buyer with a description of the information withheld and the basis for withholding such information. Notwithstanding anything in this Section 7.2 to the contrary, (x) Buyer will not have access to personnel and medical records if such access could, in Seller’s good faith judgment, subject Seller or any of its Affiliates to risk of liability or otherwise violate the Health Insurance Portability and Accountability Act of 1996, and (y) any investigation of environmental matters by or on behalf of Buyer will be limited to visual inspections and site visits commonly included in the circumstances. No investigation pursuant scope of “Phase 1” level environmental inspections, and Buyer will not have the right to this Section 6.03 perform or by Acquiror conduct any other sampling or its Affiliates shall affect testing at, in, on, or be deemed to modify underneath any representation, warranty, covenant or other agreement made by premises used in the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoBusiness.
(b) All Unless and until the transactions contemplated hereby have been consummated, Buyer will, and will cause Buyer’s Representatives to, hold in strict confidence and not use or disclose to any other Person all Confidential Information. “Confidential Information” means all information in any form heretofore or hereafter obtained from Seller, Seller’s Representatives or Seller’s Affiliates in connection with Buyer’s evaluation of the Business or the negotiation of this Agreement, whether pertaining to financial condition, results of operations, methods of operation or otherwise, other than information which is in the public domain through no violation of this Agreement or the Confidentiality Agreement by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject Buyer. Notwithstanding the foregoing, Buyer may disclose Confidential Information to the provisions extent that such information is required to be disclosed by Buyer or Buyer’s Representatives by Law or in connection with any proceeding by or before a Governmental Entity, including any disclosure, financial or otherwise, required to comply with any SEC rules. In the event that Buyer believes any such disclosure is required, Buyer will give Seller notice thereof as promptly as possible and will cooperate with Seller in seeking any protective orders or other relief as Seller may determine to be necessary or desirable. In no event will Buyer make any disclosure of Confidential Information other than to the Confidentiality Agreementextent Buyer’s legal counsel has advised in writing is required by Law, and Buyer will use its best efforts to assure that any Confidential Information so disclosed is protected from further disclosure to the maximum extent permitted by Law. If the transactions contemplated hereby are not consummated, Buyer will promptly return to Seller all copies of any Confidential Information, including any materials prepared by Buyer or Buyer’s Representatives incorporating or reflecting Confidential Information, and an officer of Buyer shall certify in writing compliance by Buyer with the foregoing.
Appears in 1 contract
Sources: Unit Purchase Agreement (Aquila Inc)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable LawSeller will, the Company shall, at reasonable times and shall cause its Subsidiaries to, upon reasonable notice: (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other its Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesits and York Haven's managerial personnel and to all books, officesrecords, data centers plans, equipment, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of properties constituting the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, Purchased Assets; (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, and permit Buyer to make such reasonable Inspections thereof as Buyer may request; (iii) furnish promptly to Acquiror and Merger Sub Buyer at its request a copy of each material report, schedule and or other document filed or received by the Company Seller, York Haven or any of its Subsidiaries during such period pursuant Affiliates with respect to the requirements of Purchased Assets with the federal SEC, FERC, PaPUC, PaDEP, or state securities Laws any other Governmental Authority; and (iv) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the representations and warranties of Seller contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply. Notwithstanding anything in this Section 6.2 to the contrary, Seller will only furnish or provide such access to Transferring Employee Records and will not furnish or provide access to other employee personnel records or medical information unless required by law or specifically authorized by the affected employee, nor shall Buyer have the right to administer to any of Seller's employees any skills, aptitudes, psychological profile, or other employment related test. Seller agrees to provide Buyer with copies of all documents and reports, including without limitation testing reports, provided to or received from Siemens Power Corporation under the Siemens' Agreement with respect to the matters testing and commissioning of Portland Unit 5. Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or underneath the Purchased Assets.
(b) Each Party shall, and shall use its best efforts to cause its Representatives to, (i) keep all Proprietary Information of the other Party confidential and not to disclose or reveal any such Proprietary Information to any person other than such Party's Representatives and (ii) not use such Proprietary Information other than in connection with the consummation of the transactions contemplated hereby. After the Closing Date, any Proprietary Information to the extent related to the Purchased Assets shall no longer be subject to the restrictions set forth on Section 6.03(a) herein. The obligations of the Disclosure LetterParties under this Section 6.2(b) shall be in full force and effect for three (3) years from the date hereof and will survive the termination of this Agreement, consult the discharge of all other obligations owed by the Parties to each other and the closing of the transactions contemplated by this Agreement.
(c) For a period of seven (7) years after the Closing Date (or such longer period as may be required by applicable law or Section 6.8(g)), each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with Acquiror the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance written notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any decisions of a legal nature related thereto books and records upon or prior to the Company expiration of such seven-year period (or its Subsidiaries responding any such longer period), such Party shall, prior to any request or submitting any documentation in response theretosuch disposition, provide Acquiror give the other Party a reasonable opportunity at such other Party's reasonable expense, to review segregate and remove such books and records as such other Party may select.
(d) Notwithstanding the terms of Section 6.2(b) above, the Parties agree that prior to the Closing Buyer may reveal or disclose Proprietary Information to any such submission, response other Persons in connection with Buyer's financing of its purchase of the Purchased Assets or related documentation and provide comments; any equity participation in Buyer's purchase of the Purchased Assets (provided that such Persons agree in writing to maintain the confidentiality of the Proprietary Information in accordance with respect to this clause Agreement).
(iv), e) Upon the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the other Party's prior written consent of Acquiror, approval (which consent shall will not be unreasonably withheld or delayed. Notwithstanding ), either Party may provide Proprietary Information of the foregoingother Party to the PaPUC, the Company and its Subsidiaries shall not be obligated to provide such accessSEC, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person FERC or any Law; providedother Governmental Authority with jurisdiction or any stock exchange, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries as may be necessary to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Electric Co)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, Seller shall afford Purchaser and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives representatives, reasonable access (during regular normal business hours upon reasonable noticeduring the period prior to the Closing to (i) to such employees, offices, data centers the Acquired Assets and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returnsii) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information concerning the CRM Division and the CRM Products as Acquiror or Merger Sub Purchaser may reasonably request.
(b) Subject to compliance with applicable Law, from the date hereof until Closing, Seller shall confer on a regular basis with one or more representatives of Purchaser to report operational matters of materiality and the general status of ongoing operations.
(c) Seller shall give prompt notice to Purchaser upon learning of (a) the occurrence or non-occurrence of any event whose occurrence or non-occurrence, as the case may be, would reasonably be expected to cause either (i) any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect at the date hereof or at the Closing or (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect any condition set forth in Article VII to be unsatisfied at the Closing Date (except to the businessextent it refers to a specific date) and (b) any material failure of Seller, properties and personnel of as the Company as Acquiror case may be, to comply with or Merger Sub satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder.
(d) Seller may from time to time reasonably requestprior to or on the Closing Date by notice in accordance with this Agreement supplement or amend the Seller Disclosure Schedule to (i) correct any matter that would otherwise constitute a breach of any representation, (iii) furnish promptly warranty or covenant contained in this Agreement. If such a supplement to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements amendment of the federal or state securities Laws Seller Disclosure Schedule materially and (iv) with respect adversely affects the benefits to be obtained by Purchaser under this Agreement, then Purchaser shall have the right to terminate this Agreement, but such right of termination shall be Purchaser’s sole remedy relating to matters set forth on Section 6.03(a) in amendments or supplements to the Seller Disclosure Schedule unless the existence of the Disclosure Letter, consult with Acquiror with respect such matters were known to any decisions of a legal nature related thereto and Seller prior to the Company or execution hereof and Seller willfully failed to include such matters in the Seller Disclosure Schedule, in which event Purchaser shall be entitled to recover its Subsidiaries responding actual out of pocket expenses incurred during the period commencing on the execution date hereof and ending on the effective date of termination of this Agreement. Notwithstanding any other provision of this Agreement to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)the contrary, the Company Seller Disclosure Schedule and its Subsidiaries the representations and warranties made by Seller shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed for all purposes to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror include and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions reflect such supplements and amendments as of the Confidentiality Agreementdate hereof and at all times hereafter, including the Closing Date.
Appears in 1 contract
Access to Information. (a) During ECC and Seller agree that Seller will make available to Purchaser and its authorized representatives during normal business hours throughout the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject prior to the requirements Closing Date all such information concerning the affairs of applicable LawSeller, the Company shallincluding all properties, books, records, accounts and other documents, for their inspection and review and such access to Seller’s officers and employees, and shall cause its Subsidiaries toagents and representatives of Seller, (i) give Acquiror and Merger Sub and including Seller’s Accountants, at their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, respective offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub Purchaser may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably time. Purchaser covenants and agrees that it will hold and cause its authorized representatives to hold in strict confidence all information so obtained, and if the transactions herein provided for are not consummated as contemplated herein, Purchaser will return and cause their authorized representatives to return all such information and materials as ECC or Seller may request, (iii) furnish promptly and will not disclose or divulge to Acquiror and Merger Sub a copy or use for its benefits or the benefit of each reportany other person, schedule and other document filed firm or received by the Company corporation, or allow its authorized to do so, any portion of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submissiondata or information, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries Purchaser shall not be obligated to provide such access, inspections, data or other treat as confidential any information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionwhich Seller does not treat as confidential, or (B) would violate an existing confidentiality obligation of which Purchaser had specific knowledge prior hereto or which is or becomes publicly known or available other than by violation hereof. Purchaser acknowledges that ECC is a reporting company under the Federal Securities Laws and accordingly that Purchaser may not offer to purchase or sell, or purchase or sell, any Person or securities of ECC at any Law; provided, however, that time when Purchaser is in the case possession of clause (A) and (B), the Company shallmaterial non-public information concerning ECC, and shall cause its Subsidiaries tothat information concerning Seller which is made available to Purchaser hereunder may constitute material non-public information concerning ECC. Purchaser further agrees that Hoppensteadt has been and may be now or hereafter in possession of information concerning Seller which is material non-public information concerning ECC and that all such knowledge of Hoppensteadt is attributed to Purchaser for purposes hereof. Purchaser, use commercially reasonable efforts for itself and Hoppensteadt, agrees to obtain keep all such material non-public information confidential and to refrain from purchasing or selling, or offering to purchase or sell, any required consents securities of ECC at any time when any such material non-public information is known to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoHoppensteadt.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During WSTG shall afford to the Company and shall cause its independent accountants to afford to the Company, and its accountants, counsel and other representatives, reasonable access during normal business hours during the period from prior to the date of Closing to all information concerning WSTG, as the Company may reasonably request, provided that WSTG shall not be required to disclose any information which it is legally required to keep confidential. The Company will not use such information for purposes other than this Agreement continuing and will otherwise hold such information in confidence (and the Company will cause its consultants and advisors also to hold such information in confidence) until such time as such information otherwise becomes publicly available, and in the earlier event of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, for any reason the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionreturn, or (B) would violate an existing confidentiality obligation cause to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsbe returned, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify disclosing party all documents obtained from WSTG, and any representationcopies made of such documents, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror extracts and Merger Sub related theretocopies thereof.
(b) All information obtained by Acquiror or Merger Sub pursuant The Company shall afford to this Section 6.03 WSTG and the WSTG Stockholders and shall be subject cause its independent accountants to afford to WSTG and the WSTG Stockholders, and their accountants, counsel and other representatives, reasonable access during normal business hours during the period prior to the provisions Closing to all of the Confidentiality AgreementCompany's properties, books, contracts, commitments and records and to the audit work papers and other records of the Company's independent accountants. During such period, the Company shall use reasonable efforts to furnish promptly to WSTG and the WSTG Stockholders such information concerning the Company as WSTG and WSTG Stockholders may reasonably request, provided that the Company shall not be required to disclose any information which it is legally required to keep confidential. WSTG and the WSTG Stockholders will not use such information for purposes other than this Agreement and will otherwise hold such information in confidence (and WSTG and the WSTG Stockholders will cause their respective consultants and advisors also to hold such information in confidence) until such time as such information otherwise becomes publicly available, and in the event of termination of this Agreement for any reason WSTG and the WSTG Stockholders shall promptly return, or cause to be returned, to the disclosing party all documents obtained from the Company, and any copies made of such documents, extracts and copies thereof.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (China Shoe Holdings, Inc.)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeSeller shall, subject to the requirements of applicable Law, grant to Purchaser (or its designees) access at all reasonable times to all of the Company shallrecords relating to the Acquired Companies within the possession or control of Seller or its Affiliates (including work papers and correspondence with taxing authorities), and shall cause afford Purchaser (or its Subsidiaries to, designees) the right (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable noticeat Purchaser’s expense) to such employees, offices, data centers and other facilities at reasonable times take extracts therefrom and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsmake copies thereof, to the extent practicable in the circumstances. No investigation pursuant reasonably necessary to this Section 6.03 or by Acquiror permit Purchaser (or its Affiliates shall affect designees) to prepare Tax Returns, to conduct negotiations with Tax authorities, and to implement the provisions of, or be deemed to modify investigate or defend any representationclaims between the Parties arising under, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoAgreement.
(b) All information obtained by Acquiror Purchaser shall, subject to applicable Law, grant to Seller (or Merger Sub pursuant its designees) access at all reasonable times to all of the records relating to the Acquired Companies within the possession or control of Purchaser, its Affiliates, or any Acquired Company (including work papers and correspondence with taxing authorities), and shall afford Seller (or its designees) the right (at Seller’s expense) to take extracts therefrom and to make copies thereof, to the extent reasonably necessary to permit Seller (or its designees) to prepare Tax Returns, to conduct negotiations with Tax authorities, and to implement the provisions of, or to investigate or defend any claims between the Parties arising under, this Section 6.03 Agreement.
(c) Each of the Parties will preserve and retain all schedules, work papers and other documents relating to any Tax Returns of or with respect to the Acquired Companies or to any claims, audits or other proceedings affecting the Acquired Companies until the later of: (i) the expiration of the statute of limitations (including extensions) applicable to the taxable period to which such documents relate; (ii) the final determination of any controversy with respect to such taxable period; (iii) the final determination of any payments that may be required with respect to such taxable period under this Agreement; or (iv) three years following the due date with extensions for such Tax Returns. Prior to disposing of any such records, notice shall be subject given to the provisions other Party providing reasonable terms allowing such other Party to take, at its sole expense, possession of the Confidentiality Agreementsuch records.
Appears in 1 contract
Access to Information. (a) During Subject to any and all applicable Law and prior to Closing, Seller shall permit Buyer and its representatives to have reasonable access to the period from Assets and the date of this Agreement continuing until Business, Seller's properties, Contracts related to the earlier Business, Governmental Permits, and books and records and other documents and data of the valid termination of this Agreement or the Effective TimeBusiness, subject to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours and upon reasonable advance written notice, and Seller shall otherwise cooperate and assist, to the extent reasonably requested by Buyer, with Buyer's investigation of the Assets and the Business; provided, however, that to the extent any such documents or information are subject to confidentiality restrictions on disclosure, Seller shall use commercially reasonable efforts to obtain consent to the disclosure thereof or, if such consent cannot be obtained, Seller shall provide as much information regarding such documents or information as is permissible under such confidentiality restrictions on disclosure (e.g., by means of redacted disclosure or of summarization) and shall use all commercially reasonable efforts to obtain consent, if required, to such employeesarrangements, officesbut if any such consent cannot be obtained, data centers and other facilities Seller shall not be required to violate any obligation of confidentiality to which Seller is subject in discharging its obligations pursuant to this Section 5.1, nor shall the foregoing require Seller to permit any inspection of documents subject to Seller's attorney-client privilege, or to permit inspection or to disclose any information, to the extent that in Seller's reasonable judgment it would result in the loss of trade secret protection at reasonable times and to such bookslaw or in equity for any trade secrets; provided, Contractsfurther, commitments and records (including Tax Returns) of the Company that Buyer and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct representatives comply with the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestConfidentiality Agreement. The foregoing sentence notwithstanding, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the businessagreements listed on Schedule 1.1(b)(xv), properties Seller shall only be obligated to request in writing authorization from the relevant party to provide such confidential information to Buyer. To the extent Buyer requests copies of documents from Seller pursuant to this Section 5.1, Buyer may direct its request to an appropriate person at the Facilities and, if Buyer does so, simultaneously to an Authorized Representative of Seller that is not located at the Facilities. Buyer agrees that such investigation shall be conducted in such a manner as not to interfere unreasonably with the operations of Seller, and personnel Buyer and its representatives shall not speak to any of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements employees of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters Business without the prior written consent of Acquiror, (which consent shall not be unreasonably withheld or delayed) of an Authorized Representative of Seller, such communications shall be limited to the purposes of effecting the contemplated transactions and transition planning and shall only be made in the presence of an Authorized Representative of Seller. Notwithstanding With respect to Buyer's communication with employees of the Business located at the Wichita Facility, Seller agrees to make an Authorized Representative of Seller available at the Wichita Facility at all reasonable times. Despite the foregoing, Buyer shall have reasonable direct access to those employees of Seller listed on Schedule 5.1 solely for purposes of reasonable ongoing due diligence, transition planning and labor union consultation relating to the Company transactions contemplated by this Agreement without the prior consent of Seller and its Subsidiaries without a representative of Seller being present, so long as Buyer does not interfere with the day-to-day responsibilities of such employees, such employees will not be directly involved in negotiations with Seller relating to transactions contemplated by this Agreement, to the extent counsel for Buyer contacts such employees, such contact is only for the purpose of obtaining information or with respect to assistance in negotiation with parties other than Seller, and Buyer acknowledges that Seller is not responsible for any information provided to Buyer by such an employee. To the extent any Person listed on Schedule 5.1 is an employee of Seller employed as an attorney for Seller, Buyer shall only be allowed reasonable access to such Person with respect to factual matters but shall not be obligated entitled to provide such access, inspections, data or other information to discuss matters protected by the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or that constitute attorney work product protection, or (B) would violate an existing confidentiality obligation product. Buyer shall not be permitted to solicit legal advice from such Person and hereby acknowledges that any such Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside is counsel to avoid the loss of attorney client privilege) as is necessary Seller and not to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoBuyer.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Spirit AeroSystems Holdings, Inc.)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject Subject to the requirements of applicable Law, during the Pre-Closing Period, the Company shallshall afford Acquiror and its Representatives reasonable access to, and shall cause its Subsidiaries toupon reasonable notice during business hours, (i) give all of the assets, properties, Books and Records and Contracts of the Company, (ii) all other information concerning the business, assets, properties and personnel (subject to restrictions imposed by Law) of the Company as Acquiror may reasonably request, and (iii) all Employees, customers, and suppliers of the Company as identified by Acquiror; provided that any such access or furnishing of information shall be conducted at Acquiror’s expense, under the supervision of personnel of the Company in compliance with and subject to the Company’s health, safety and security requirements, recommendations or policies (including relating to the COVID-19 Measures). The Company agrees to provide to Acquiror and Merger Sub and their authorized officers, employees, its accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records copies of its internal financial statements (including Tax ReturnsReturns and supporting documentation) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably promptly upon request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access subject to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or customary access letters if requested by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstancesauditors). No information or knowledge obtained in any investigation conducted pursuant to this Section 6.03 7.10 or by Acquiror or its Affiliates otherwise shall affect or be deemed to modify qualify, limit, waive, modify, amend or supplement any representationrepresentation or warranty contained herein or in the Disclosure Schedule, warrantythe conditions to the obligations of the parties to consummate the Mergers in accordance with the terms and provisions of this Agreement, covenant or other agreement made by the Company in this Agreement or the conditions rights of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror under or Merger Sub arising out of a breach of this Agreement. Notwithstanding the foregoing, any investigation pursuant to this Section 6.03 7.10 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Company and the Company shall not have any obligation to provide any access or information if providing such access or information would cause the Company to waive any attorney-client privilege or other legal privilege or breach any confidentiality agreement with a third party entered into prior to the Agreement Date. All information exchanged pursuant to this Section 7.10 shall be subject to the provisions of the Confidentiality Non-Disclosure Agreement.
Appears in 1 contract
Sources: Merger Agreement (Pacific Biosciences of California, Inc.)
Access to Information. (a) During Subject to any applicable COVID-19 Measures, during the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeInterim Period, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries Affiliates to, (i) give Acquiror and Merger Sub afford to Purchaser, its Affiliates and their authorized respective directors, officers, employees, accountantsrepresentatives, investment bankersagents or consultants (including any surveyor), counsel and other Representatives reasonable access (during regular business hours access, upon reasonable notice) notice during normal business hours, to such employeesthe Facility, officesthe Business, data centers the Leased Real Property, the Books and other facilities at reasonable times Records, and to such booksthe directors, Contractsofficers, commitments and records (including Tax Returns) employees or representatives of the Company Seller and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect Affiliates related to the businessFacility and the Business; provided, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably requesthowever, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during that such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries access shall not agree be construed to settle include any right to conduct any sampling or provide any remedy with regard to any such matters testing of environmental media without the prior written consent of AcquirorSeller; provided, which consent further, that Purchaser shall not be unreasonably withheld abide by Seller’s environmental, health and safety rules and operating policies (including the execution and delivery of any documentation or delayedpaperwork (e.g., boarding agreements or liability releases) with respect to Purchaser’s access) while conducting any of the activities contemplated hereunder. Notwithstanding the foregoing, the Company Seller and its Subsidiaries Affiliates shall not be obligated required to provide disclose any information under this Section 5.4(a) if such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to disclosure would jeopardize an any attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to contravene any Person or any applicable Law; providedprovided that, howeverin each such case, that in the case of clause (A) and (B), the Company Seller shall, and shall cause its Subsidiaries Affiliates to, use commercially reasonable efforts to obtain any required consents put in place an arrangement to provide permit such access, inspections, data disclosure without jeopardizing such privilege or other information and take violating such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement(i) PURCHASER, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE REPRESENTATIVES, AS APPLICABLE, WAIVE AND RELEASE ALL DAMAGES AGAINST SELLER AND ITS AFFILIATES AND REPRESENTATIVES FROM, AND (ii) PURCHASER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS SELLER AND ITS AFFILIATES AND REPRESENTATIVES FROM AND AGAINST ALL DAMAGES TO SELLER, ITS AFFILIATES, ITS EMPLOYEES AND ITS REPRESENTATIVES (INCLUDING DAMAGES ACTUALLY INCURRED BY SELLER AND OWING TO CORNERSTONE CHEMICAL COMPANY AS A RESULT OF AGREEMENTS BETWEEN SELLER AND CORNERSTONE CHEMICAL COMPANY) RESULTING FROM OR RELATING TO THE ACTIVITIES OF PURCHASER, ITS AFFILIATES AND ITS AND THEIR RESPECTIVE REPRESENTATIVES UNDER THIS SECTION 5.4 IN CONNECTION WITH PHYSICAL ACCESS OF ANY SUCH REPRESENTATIVES TO THE FACILITY DURING THE INTERIM PERIOD; PROVIDED, THAT SUCH LIABILITY DOES NOT RELEASE SELLER, ITS AFFILIATES, AND ITS REPRESENTATIVES FROM ANY CLAIMS (INCLUDING CLAIMS FOR CONTRIBUTION OR INDEMNITY) TO THE EXTENT THAT SUCH DAMAGE ARISES OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, ITS AFFILIATES AND THEIR RESPECTIVE REPRESENTATIVES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, PURCHASER'S FOREGOING RELEASE OF SELLER AND ITS AFFILIATES AND REPRESENTATIVES AND PURCHASER'S FOREGOING INDEMNIFICATION OBLIGATION SHALL NOT APPLY TO ANY DAMAGES, LOSSES OR CLAIMS ARISING FROM THE DISCOVERY OF ANY PRE-EXISTING CONDITION OF THE SITE, INCLUDING ANY ENVIRONMENTAL CONDITIONS, UNLESS AND TO THE EXTENT THE ACTIVITIES OF PURCHASER EXACERBATE SUCH PRE-EXISTING CONDITION. THE FOREGOING INDEMNIFICATION OBLIGATION SHALL SURVIVE THE CLOSING OR TERMINATION OF THIS AGREEMENT UNTIL THE APPLICABLE STATUTE OF LIMITATIONS FOR ANY CLAIMS THAT COULD ARISE AS A RESULT OF ACTIVITIES TAKEN BY PURCHASER AND ITS REPRESENTATIVES PURSUANT TO THIS SECTION 5.4 BARS SUCH CLAIMS.
Appears in 1 contract
Sources: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject Sellers shall afford to the requirements of applicable Law, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employeesemployees and authorized representatives of Buyer (including, without limitation, independent public accountants, investment bankersattorneys, counsel financial advisors and other Representatives consultants and advisors) reasonable access (during regular normal business hours hours, upon reasonable advance notice) , to such employees, the offices, data centers properties, employees and other facilities at reasonable times business and to such books, Contracts, commitments and financial records (including Tax Returnscomputer files, retrieval programs and similar documentation) of the Company Business to the extent Buyer shall reasonably deem necessary or desirable and shall furnish to Buyer or its Subsidiaries authorized representatives such additional information concerning the Business as Acquiror shall be reasonably requested; provided, however, that Sellers shall not be required to violate any obligation of confidentiality to any Person who is not an Affiliate of Sellers or Merger Sub Viskase Brazil to which Sellers or Viskase Brazil is subject or to waive any privilege which any of them may reasonably request possess in discharging their obligations pursuant to this Section 7.1 (it being understood that this limitation shall not apply in the case of any liabilities and instruct claims to be assumed by Buyer pursuant to Section 2.3(d)); and provided further, however, that to the Company’s (extent that any privilege applies in the case of other matters, that the respective Seller and its Subsidiaries’) independent public accountants Buyer shall enter into a confidentiality and common interest agreement, similar to provide access the Confidentiality and Common Interest Agreement dated as of May 26, 2000 between Buyer and Parent, relating to their work papers and such other information as Acquiror or Merger Sub may reasonably requestmatters. Notwithstanding the foregoing, (ii) furnish Acquiror it is understood and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period agreed that all requests for access pursuant to the requirements of the federal this Section 7.1 shall be submitted or state securities Laws and directed exclusively to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and, without his prior approval (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing), the Company and its Subsidiaries Buyer shall not initiate, or cause to be obligated to provide such accessinitiated, inspections, data communication with any employee or other information customer of the Companies with respect to the extent Business and a representative of Seller shall be given reasonable advance notice and a reasonable opportunity to participate in any such approved communication. Buyer agrees that such investigation shall be conducted in such a manner as not to do so (A) could reasonably be expected to jeopardize an attorney-client privilege interfere unreasonably with the operations of Viskase Brazil or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that Sellers. If in the case course of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 7.1, Buyer's officers, employees or by Acquiror authorized representatives discover any breach of any representation or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company warranty contained in this Agreement Agreement, or the conditions of Acquiror and Merger Sub related theretoany circumstance or condition that upon Closing would constitute such a breach, Buyer covenants that it will promptly so inform Sellers.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Bemis Co Inc)
Access to Information.
(a) During Seller agrees that, between the period from the date of this Agreement continuing until Execution Date and the earlier of the valid termination of Closing Date and the date on which this Agreement or the Effective Timeis terminated in accordance with Section 4.4, subject to the requirements of applicable LawPurchaser shall be entitled, the Company shall, and shall cause through its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, counsel, accountants and other authorized representatives, agents and contractors (“Representatives”), to have such reasonable access to and make such reasonable investigation and examination of the books and records, properties, businesses, assets, Employees, accountants, investment bankersauditors, counsel and other operations of Seller as Purchaser’s Representatives reasonable access may reasonably request (including for the avoidance of doubt, any attorneys or agents handling the prosecution or maintenance of the Seller Registered Intellectual Property Rights), provided, however, that Seller shall not be obligated to provide information that it is not permitted to provide under applicable Law. Any such investigations and examinations shall be conducted during regular business hours upon reasonable notice) advance notice and under reasonable circumstances, including Seller’s right to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company have its Representatives accompany Purchaser and its Subsidiaries as Acquiror Representatives upon the Leased Real Property at the time of any inspection or Merger Sub may reasonably request examination and instruct the Company’s (shall be subject to restrictions under applicable Law. Pursuant to this Section 9.2, Seller shall furnish to Purchaser and its Subsidiaries’) independent public accountants to provide access to their work papers Representatives such financial, operating and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating property related data and other information as such Persons reasonably request. Seller shall use commercially reasonable efforts to cause its Representatives to reasonably cooperate with respect Purchaser and Purchaser’s Representatives in connection with such investigations and examinations, and Purchaser shall, and use its commercially reasonably efforts to cause its Representatives to, reasonably cooperate with Seller and its Representatives and shall use their reasonable efforts to minimize any disruption to the businessBusiness. Purchaser and its Representatives shall be permitted to contact, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably requestengage in discussions or otherwise communicate with Seller’s landlords, (iii) furnish promptly to Acquiror and Merger Sub a copy of each reportclients, schedule suppliers and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) Persons with respect to the matters set forth on Section 6.03(a) of the Disclosure Letterwhich Seller has material commercial dealings, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response theretoprovided, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without Purchaser must obtain the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld or delayed, to initiate such communications and give Seller the opportunity to be present therefor.
(b) From and after the Closing Date, Seller shall, and shall cause its Subsidiaries to, give Purchaser and Purchaser’s Representatives reasonable access during normal business hours to the offices, facilities, properties, assets, Employees, Documents (including, without limitation, any Documents included in the Excluded Assets), personnel files and books and records of Seller pertaining to the Business. Notwithstanding In connection with the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company Seller shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain cause their respective Representatives to furnish, at Purchaser’s expense, to Purchaser such financial, technical, operating and other information pertaining to the Business as Purchaser’s Representatives shall from time to time reasonably request and to discuss such information with such Representatives. Without limiting the generality of the foregoing, at Purchaser’s expense, Seller shall cooperate with Purchaser as may reasonably be requested by any required consents of Purchaser or its Representatives for purposes of (i) enabling an independent accounting firm selected by Purchaser to provide conduct an audit of the Business, including access to Seller’s independent auditors’ working papers pertaining to the Business or the Acquired Assets including any environmental assessment; (ii) undertaking, with the consent of Seller, which consent shall not be unreasonably withheld or delayed, any study of the condition or value of the Acquired Assets; and (iii) undertaking any study relating to Seller’s compliance with Laws; and Seller acknowledges that information or access may be requested and used for such purpose; provided, however, that the access, inspectionsand related rights to investigate and examine, data or other information granted to Purchaser and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation Representatives pursuant to this Agreement shall not constitute nor be construed as a waiver of any applicable legal privilege of Seller, including the attorney-client and work product privileges.
(c) From and after the Closing Date until the first (1st) anniversary of the Closing Date, Purchaser shall give Seller and Seller’s Representatives reasonable access during normal business hours to the offices, facilities, properties, assets, Employees, Documents (including, without limitation, any Documents included in the Acquired Assets), personnel files and books and records of Purchaser pertaining to (i) the conduct of the Business or ownership of the Acquired Assets prior to the Closing Date or (ii) the Excluded Assets and Excluded Liabilities that are reasonable and necessary to the administration of Seller’s estate, provided however that Seller shall reimburse Purchaser for ordinary and necessary out-of-pocket costs incurred by Purchaser related to such access (i.e. copying costs). In connection with the foregoing, Purchaser shall use commercially reasonable efforts to cause its Representatives to furnish to Seller such financial, technical, operating and other information pertaining to (i) the conduct of the Business or ownership of the Acquired Assets prior to the Closing Date, or (ii) the Excluded Assets and Excluded Liabilities, in each case, as Seller’s Representatives shall from time to time reasonably request and to discuss such information with such Representatives.
(d) No information received pursuant to an investigation made under this Section 6.03 or by Acquiror or its Affiliates 9.2 shall affect or be deemed to modify (i) qualify, modify, amend or otherwise affect any representationrepresentations, warrantywarranties, covenant covenants or other agreement made by the Company agreements of Seller set forth in this Agreement or any certificate or other instrument delivered to Purchaser in connection with the transactions contemplated hereby, (ii) amend or otherwise supplement the information set forth in the Seller Disclosure Schedule, (iii) limit or restrict the remedies available to the parties under applicable Law arising out of a breach of this Agreement or otherwise available at Law or in equity, or (iv) limit or restrict the ability of either party to invoke or rely on the conditions to the obligations of Acquiror and Merger Sub related thereto.the parties to consummate the transactions contemplated by this Agreement set forth in Article X.
(be) All information obtained by Acquiror On the Execution Date, Seller shall provide Purchaser with a list of all payments, filings, and other actions which are due to be made or Merger Sub pursuant to this Section 6.03 shall be subject taken in connection with the prosecution and maintenance of the Seller Registered Intellectual Property Rights during the period beginning on the date hereof and extending to the provisions of date that is three (3) months following the Confidentiality Agreementscheduled Closing Date. Such list will be promptly updated by Seller if the scheduled Closing Date is postponed.
Appears in 1 contract
Sources: Asset Purchase Agreement
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company shall, Seller shall (and shall cause its the Seller Subsidiaries to, ) (i) during ordinary business hours and upon reasonable notice, give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other the Buyer Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at and properties constituting the Purchased Assets or the Assumed Liabilities; (ii) permit the Buyer and the Buyer representatives to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of inspections thereof as the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) cause its officers and advisors to furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of Purchased Assets or the Company Assumed Liabilities as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer with a copy of each report, schedule and schedule, or other document filed or received by Seller between the Company date of this Agreement and the Closing Date with the SEC, FERC, PUCN, or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) other Governmental Authority with respect to the matters set forth on Section 6.03(aPurchased Assets or the Assumed Liabilities; (v) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the Disclosure Letterrepresentations and warranties of Seller contained in this Agreement; and (vi) at Buyer's reasonable request make available to Buyer and the Buyer Representatives, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to answer questions concerning the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)Purchased Assets, the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without operation of the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionPurchased Assets, or the Assumed Liabilities, personnel of the Seller during ordinary business hours for reasonable time periods at locations reasonably selected by Seller (B) would violate an existing confidentiality obligation such personnel shall be reasonably suited to any Person or any Lawanswer questions based on the scope of their responsibilities); provided, however, that in the case of clause (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client or other privilege, (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply and (B)D) the number of individuals representing Buyer in such inspections at any given time, shall not exceed seven (7) unless Seller consents to a number larger than seven (7) and such consent shall not be unreasonably withheld. Notwithstanding anything in this Section 7.2(a) to the Company contrary, prior to the Closing Date, Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or underneath the Purchased Assets (except for such environmental sampling or testing as Buyer may reasonably deem necessary to investigate (i) the validity of any claims, actions, proceedings or investigations instigated by any Governmental Authority on or after the date hereof with respect to any alleged violation of Environmental Laws or (ii) any other environmental condition arising or occurring on or after the date hereof which Buyer reasonably believes may constitute a violation of Environmental Laws.
(1) The Parties agree that between the date hereof and the Closing Date, at the sole responsibility and expense of Buyer, Seller shall, and shall cause its the Seller Subsidiaries to, use commercially permit designated representatives ("Observers") of Buyer to regularly observe, in the presence of personnel of Seller and at Buyer's reasonable efforts discretion, all operations of Seller and the Seller Subsidiaries that relate specifically to obtain the Purchased Assets, and the operation thereof, and to observe material discussions with third parties relating specifically to the Purchased Assets or the Assumed Liabilities; provided, however, that (A) any required consents such observations shall be conducted in such a manner as not to provide such accessinterfere unreasonably with the operation of the Purchased Assets, inspections, data (B) Buyer shall not be entitled to observe any discussions between Seller and its legal counsel or accountants and shall not otherwise be entitled to observe any activities or discussions which may constitute a waiver of the attorney-client or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise (C) Seller need not permit the Company shallObservers to observe or participate in discussions concerning any information which Seller are under a legal or contractual obligation not to disclose. The Observers may recommend or suggest that actions be taken or not be taken by Seller; provided, however, that Seller will be under no obligation to follow any such recommendations or suggestions and that Seller shall cause its Subsidiaries tobe entitled, use reasonable best efforts subject to institute appropriate substitute disclosure arrangementsthe terms of this Agreement, to conduct their business in accordance with their own judgment and discretion. The Observers shall have no authority to bind or make agreements on behalf of Seller or any Seller Subsidiaries, to conduct discussions with or make representations to third parties on behalf of Seller or any Seller Subsidiaries or to issue instructions to or direct or exercise authority over Seller or any Seller Subsidiaries or any of their respective officers, employees, advisors or agents.
(2) All information furnished to or obtained by the extent practicable in Buyer and the circumstances. No investigation Buyer Representatives pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Evaluation Material" (as defined in the Confidentiality Agreement).
(3) For a period of ten (10) years after the Closing Date, the Seller and its representatives shall have reasonable access to all of the books and records of the Purchased Assets, as the case may be, transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operation of the Purchased Assets prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by them pursuant to this Section 7.2(d). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such ten-year period, the Buyer shall, prior to such disposition, give the Seller a reasonable opportunity at the Seller's expense, to segregate and remove such books and records as the Seller may select.
Appears in 1 contract
Sources: Asset Sale Agreement (Wisconsin Public Service Corp)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries to, : (i) give Acquiror Buyer and Merger Sub and their authorized officersits Representatives, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular normal business hours and upon reasonable notice) , reasonable access to such employeesall books, officesrecords, data centers plans, offices and other facilities and properties in the possession of Seller included in the Purchased Assets (it being understood that Seller shall have the right to have a Representative present at reasonable all times and to during any such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, access); (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information in the possession of Seller with respect to the business, properties and personnel of Purchased Assets or the Company Business as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iii) furnish promptly Buyer with all such other information in the possession of Seller and provide such other cooperation as shall be reasonably necessary to Acquiror enable Buyer, at its request, to verify the accuracy of the representations and Merger Sub warranties of Seller contained in this Agreement; provided, however, that (A) any such access or requests shall be conducted in such manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a copy waiver of each reportthe attorney-client or other privilege, schedule and other document filed (C) Seller need not supply Buyer with any information which Seller is under a legal or received by the Company contractual obligation not to supply if Seller so notifies Buyer. Seller shall only furnish or any of its Subsidiaries during provide such period pursuant access to Employee personnel records and files to the requirements of extent permitted by applicable Law and to the federal or state securities Laws extent that such records and files pertain to the following: (i) skill and development training; (ii) seniority histories; (iii) salary and benefit information; (iv) Occupational Safety and Health Administration reports; and (v) active medical restriction forms.
(b) All information furnished to or obtained by Buyer and Buyer's Representatives pursuant to this Section 6.2 shall be Proprietary Information and shall be kept confidential in accordance with the terms of the Confidentiality Agreement. Nothing in this Section 6.2 is intended to or shall be deemed to amend, supplement or otherwise modify the obligations of Buyer, its Representatives or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(c) For a period of seven (7) years from and after the Closing Date, each Party and its Representatives shall have reasonable access during normal business hours to all of the books and records of the Purchased Assets or the Business, including all Transferred Employee Records, in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the ownership, lease, maintenance or operation of the Purchased Assets, the Business or the Excluded Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or any out-of-pocket costs of the other Party with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period, such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at such other Party's cost and expense, to segregate and remove such books and records as such other Party may select. Buyer's right of examination and access pending the Closing with respect to environmental matters relating to the Purchased Assets shall in no event include physical testing of or collection of samples from the Real Property or the Purchased Assets except as otherwise provided herein, it being understood that the provisions set forth in (e) below shall be Buyer's sole rights relating thereto.
(d) Except as otherwise provided in Section 6.18, Buyer shall not, prior to the Closing Date, contact any customer, vendor, supplier of, or director, officer, partner, member or employee of, or any other Person having business dealings with, Seller or its Affiliates with respect to any aspect of the Business or Purchased Assets or the transactions contemplated hereby or by any Additional Agreement, including any Governmental Authority, without the prior consent of Seller; provided, that Buyer may request from a Governmental Authority information which is publicly available. Notwithstanding the foregoing, Seller shall work with Buyer to prepare statements that Buyer or Seller may provide in response to inquiries from any such Person having business dealings with Seller or its Affiliates, with respect to the matters set forth on Section 6.03(a) Business or Purchased Assets or transactions contemplated hereby or by any Additional Agreement. Except as otherwise provided herein, prior to Closing, Buyer shall not investigate or inquire as to any matter with any Governmental Authority having jurisdiction over any aspect of the Disclosure LetterBusiness or Purchased Assets, consult with Acquiror with respect to any decisions of a legal nature related thereto unless and prior to until the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall Seller (not to be unreasonably withheld or delayed. Notwithstanding ) to the foregoingmaking of such investigation or inquiry, has been received by Buyer and after consultation with Seller as to the scope and manner of the investigation or inquiry.
(e) Without limiting any other provision of this Section 6.2, with respect to the Real Property, the Company scope of work to be conducted by the Environmental Consultant shall include such reviews, analysis, site visits and sampling as are sufficient, in the case of Phase I, to meet the requirements of ASTM 1527-05 and the scope attached hereto as Schedule 6.02(e)(i), and a Phase II consistent with the scope attached hereto as Schedule 6.02(e)(ii) covering the areas and issues as reasonably recommended by the Environmental Consultant after the Phase I. The Parties agree that the scope of the Phase II Site assessment may be expanded upon the mutual agreement of Buyer and Seller if Buyer reasonably concludes there may be a material Liability after its Subsidiaries due diligence investigation, and if requested within thirty (30) days from the date the results of the Phase I assessment are provided to Buyer. Any reports or studies completed by the Environmental Consultant in connection with this Section 6.2(e) shall not be obligated addressed to provide such access, inspections, data or other information to both the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawBuyer and the Seller; provided, however, that in no event shall Buyer be able to instruct or otherwise direct the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstancesEnvironmental Consultant. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company Notwithstanding anything in this Agreement or to the conditions contrary, the costs, fees and expenses of Acquiror the Environmental Consultant in performance of the Phase I and Merger Sub related theretoPhase II Environmental Site Assessments contemplated in this Section 6.2(e) shall be borne by Seller. The Phase II review shall not commence before the filing by the Buyer of the applications and materials contemplated in Section 6.6 with the VSCC, except as otherwise agreed by Seller.
(bf) All information obtained communications and consultations contemplated by Acquiror or Merger Sub pursuant Sections 6.2(a), 6.4 and 6.5 shall take place between the respective designated Representatives of Seller and Buyer, as may be designated from time to this time by Seller and Buyer in the manner contemplated by Section 6.03 10.6. Seller's initial designated Representatives shall be subject to the provisions of the Confidentiality Agreement▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and Buyer's initial designated Representatives shall be ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Potomac Electric Power Co)
Access to Information. (a) During the period from Pre-Closing Period, upon reasonable advance notice, Seller shall, and shall cause the date of this Agreement continuing until Acquired Companies to, afford Buyer and its authorized representatives (including legal counsel and independent accountants) reasonable access during normal business hours (except to the earlier extent such access is restricted under the National Industrial Security Program or other similar legal or regulatory restrictions) to: (a) all of the valid termination real property, properties, assets, premises, books and records, Contracts and other documents and data related to the Acquired Companies; and (b) such financial, operating and other data and information related to the Acquired Companies as Buyer or any of its authorized representatives may reasonably request; provided, however, that any such investigation shall be conducted upon reasonable advance notice to Seller under the supervision of Seller’s personnel and in such a manner as not to unreasonably interfere with the normal operations of the Acquired Companies. All requests by Buyer for access pursuant to this Agreement Section 7.2 shall be submitted or directed exclusively to such individuals as Seller shall designate in writing from time to time. All representatives of Buyer and anyone acting on its behalf shall comply with all of Seller’s and the Effective TimeAcquired Companies’ security and other policies, procedures and regulations applicable to access to their respective premises, facilities, equipment, contractors, data and other materials, information and personnel. Notwithstanding anything to the contrary in this Agreement, neither Seller nor any Acquired Company shall be required to disclose any information to Buyer if such disclosure would: (x) jeopardize any attorney-client privilege; or (y) contravene any Legal Requirement (provided, however, that, in each case, Seller shall use commercially reasonable efforts to communicate the applicable information to Buyer in a way that would not violate the applicable Legal Requirements or jeopardize any attorney-client or other privilege). Prior to the Closing, without the prior written consent of Seller, which shall not be unreasonably withheld but such consent shall be subject to the requirements mutual agreement of applicable LawSeller and Buyer with respect to the timing of any such contact, Buyer shall not contact any suppliers to, or customers, executives or employees of, the Company Acquired Companies regarding the Acquired Companies or the Contemplated Transactions, except, in each case, for any contacts in the ordinary course of business and unrelated to the Contemplated Transactions. Buyer shall have no right to perform invasive or subsurface investigations of real property, without the prior written permission of Seller, which shall not be unreasonably withheld, conditioned or delayed.
(b) Following the Closing, Seller shall promptly, but in any event, within 30 days after the Closing, deliver, or cause to be delivered, a hard drive or other digital storage device containing a copy of the documents and information uploaded to Data Room, as it existed as of the Closing.
(c) Buyer shall, and shall cause its Subsidiaries authorized representatives to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) abide by the terms of the Company Confidentiality Agreement by and its Subsidiaries as Acquiror or Merger Sub may reasonably request between Seller and instruct SES S.A., dated November 25, 2021 (the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv“Confidentiality Agreement”), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that the Confidentiality Agreement shall remain in full force and effect and, if the case Closing occurs, then the Confidentiality Agreement shall terminate effective as of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoClosing.
(bd) All information obtained by Acquiror or Merger Sub pursuant to The Parties shall cooperate in good faith to, as soon as practicable after the date of this Section 6.03 shall be subject Agreement, agree upon a communication and integration plan with respect to the provisions executives, employees, customers and suppliers of the Confidentiality AgreementAcquired Companies.
Appears in 1 contract
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeSeller shall afford to Parent and its accountants, subject to the requirements of applicable Lawcounsel, the Company shallfinancial advisors, environmental consultants and other representatives, and shall cause its Subsidiaries toto prospective lenders, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel placement agents and other Representatives financing sources and each of their respective representatives, reasonable access (access, during regular normal business hours upon reasonable notice) notice throughout the period prior to the Closing, to their respective properties and facilities (including all real property and the buildings, structures, fixtures, appurtenances and improvements erected, attached or located thereon), books, financial information (including working papers and data in the possession of Seller or its independent public accountants, internal audit reports, and "management letters" from such employees, offices, data centers and other facilities at reasonable times and accountants with respect to such booksSeller's systems of internal control), Contracts, commitments and records (including Tax Returns) of the Company and and, during such period, shall furnish promptly such information concerning its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the businessbusinesses, properties and personnel of Seller as Parent shall reasonably request in connection with the Company transactions contemplated herein, including preparation of the Form S-4; provided, however, such investigation shall not unreasonably disrupt Seller's operations. Prior to the Closing, Seller shall generally keep Parent informed as Acquiror to all material matters involving the operations and businesses of Seller. Seller shall authorize and direct the appropriate directors, managers and employees of Seller to discuss matters involving the operations and business of Seller with representatives of Parent and its prospective lenders or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule placement agents and other document filed financial sources. All nonpublic information provided to, or received by obtained by, Parent in connection with the Company or any of its Subsidiaries during such period pursuant to the requirements transactions contemplated hereby shall be "Confidential Information" for purposes of the federal or state securities Laws Confidentiality Agreement dated May 25, 2005 among Parent and Seller (iv) with respect to the matters set forth on Section 6.03(a) "Confidentiality Agreement"), the terms of which shall continue in force until the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide commentsClosing; provided that Parent and Seller may disclose such information as may be necessary in connection with respect to this clause (iv), seeking necessary consents and approvals as contemplated hereby and in connection with the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedFinancing. Notwithstanding the foregoing, the Company and its Subsidiaries Seller shall not be obligated required to provide disclose any information if such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) disclosure would violate an existing confidentiality obligation to contravene any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation information provided to or obtained by Parent pursuant to this Section 6.03 7.1 shall limit or by Acquiror otherwise affect the remedies available hereunder to Parent (including, but not limited to, Parent's right to seek indemnification pursuant to Article X), or its Affiliates shall affect the representations or be deemed to modify any representationwarranties of, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of obligations of, the Confidentiality Agreementparties hereto.
Appears in 1 contract
Sources: Asset Purchase Agreement (Darling International Inc)
Access to Information. (a) During the period from From the date of this Agreement continuing until hereof to and through the earlier of the valid termination of this Agreement or the Effective TimeClosing, subject Sellers shall give Buyer, its counsel, financial advisors, auditors and other authorized representatives full access (during normal business hours and upon reasonable notice) to the requirements of applicable Lawoffices, the Company shallproperties, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankersauditors, counsel and other Representatives representatives, books and records of the Company and its subsidiaries, will furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial, operating and property related data and other information as such persons may request, and will instruct the Company's and its subsidiaries' employees, counsel and financial advisors to cooperate with Buyer in its investigation of the business of the Company and the subsidiaries including, without limitation, in connection with Buyer's obtaining title reports, surveys, environmental reports and similar reports or studies with respect to the Leased Real Estate, and will exercise all reasonable efforts to obtain from landlords such estoppel certificates as Buyer may request; provided that no investigation pursuant to this Section 5.2 shall affect any representation or warranty given by the Company hereunder. Without limiting the foregoing, the access and information to be afforded to Buyer pursuant to the immediately preceding sentence shall include all such access and information as may be necessary or desirable from time to time to enable Buyer (i) to determine promptly whether the termination rights referred to in Section 12.1(i) will be or are available to Buyer and (ii) to review and consider the Estimated Adjustments and the bases therefor. Information obtained in accordance with this paragraph (a) shall be held in confidence in accordance with the Confidentiality Agreement.
(b) From the Closing Date through the date the Bankruptcy Cases are closed, Buyer shall give to the Seller's Representative, its counsel, financial advisors, auditors and other authorized representatives full access (during regular normal business hours and upon reasonable notice) to the books and records of the Business to the extent such employeesbooks and records relate to pre-Closing periods, officesand will furnish to Seller's Representative, data centers its counsel, financial advisors, auditors and other facilities at reasonable times authorized representatives such financial, operating and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating property-related data and other information with respect relating to the businessBusiness, properties and personnel relating solely to pre-Closing periods, as may be necessary for administration of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) Bankruptcy Cases. Information obtained in accordance with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
paragraph (b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of held in confidence in accordance with the Confidentiality Agreement.
(c) From the date hereof to the Closing Date, the Company shall deliver to Buyer:
Appears in 1 contract
Sources: Asset Purchase Agreement (Smartalk Teleservices Inc)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, Seller will, subject to the requirements of applicable LawConfidentiality Agreement, the Company shall, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives its representatives reasonable access (during regular business hours upon reasonable noticeA) to such employeesall books, officesrecords, data centers plants, offices and other facilities and properties constituting the Auctioned Assets, including for the purpose of observing the operation by Seller of the Auctioned Assets and (B) to the Auctioned Assets that are not located at reasonable times the Generating Plants or Gas Turbines and to such books, Contracts, commitments and records (including Tax Returns) applicable employees of the Company and its Subsidiaries Seller, in each case for the purpose of preparing to store spare parts after the Closing, (ii) permit Buyer to make such reasonable inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Auctioned Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer upon request a copy of each material report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure LetterAuctioned Assets filed by Seller with, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)received by Seller from, the Company and its Subsidiaries shall not agree to settle PSC or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawFERC; provided, however, that in the case of clause (A) any such activities shall be conducted in such a manner as not to interfere unreasonably with the operation of the Auctioned Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (B)C) Seller need not supply Buyer with (1) any information or access which Seller is under a legal obligation not to supply or (2) any information which Seller has previously supplied to Buyer. Notwithstanding anything in this Section 7.02 to the contrary, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any (I) Seller will not be required consents to provide such accessinformation or access to any employee records other than Transferring Employee Records, inspections(II) Buyer shall not have the right to perform or conduct any environmental sampling or testing at, data in, on, around or other information underneath the Auctioned Assets and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilegeIII) as is necessary Seller shall not be required to provide such access, data access or other information with respect to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 any Retained Asset or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoRetained Liabilities.
(b) All information obtained Unless otherwise agreed to in writing by Acquiror or Merger Sub pursuant Buyer, Seller shall, for a period commencing on the Closing Date and terminating three years after the Closing Date, keep confidential and shall cause its representatives to this Section 6.03 shall be subject to the provisions of keep confidential all Confidential Information (as defined in the Confidentiality Agreement) on the terms set forth in the Confidentiality Agreement. Except as contemplated by the following sentence, Seller shall not release any person from any confidentiality agreement now existing with respect solely to the Auctioned Assets or waive or amend any provision thereof. After the Closing Date, upon reasonable request of Buyer, Seller shall, to the maximum extent permitted by law and the applicable Bidder Confidentiality Agreement (as defined below), appoint Buyer to be Seller's representative and agent in respect of confidential information relating to the Auctioned Assets under the confidentiality agreements ("Bidder Confidentiality Agreements") between Seller and prospective purchasers of certain generation assets of Seller of which the Auctioned Assets form part.
(c) From and after the Closing Date, Buyer shall retain all Operating Records (whether in electronic form or otherwise) relating to the Auctioned Assets on or prior to the Closing Date. Buyer also agrees that, from and after the Closing Date, Seller shall have the right, upon reasonable request to Buyer, to receive from Buyer copies of any Operating Records or other information in Buyer's possession relating to the Auctioned Assets on or prior to the Closing Date and required by Seller in order to comply with applicable law. Seller shall reimburse Buyer for its reasonable costs and expenses incurred in connection with the foregoing sentence.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Consolidated Edison Co of New York Inc)
Access to Information. (a) During the period from From the date of this Agreement continuing hereof until the earlier Closing, Seller shall, for the purpose of enabling Buyer to conduct the Post-Signing Due Diligence, (a) afford Buyer and its Representatives reasonable access to and the reasonable right to inspect, upon reasonable notice and during Seller’s normal business hours, all of the valid termination Real Property, properties, assets, premises, Books and Records, Contracts and other documents and data related to the Business, subject where applicable to the terms of this the Site Access and Indemnification Agreement dated as of June 7, 2018 between Seller and Buyer as the same may be amended or supplemented from time to time; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Effective TimeBusiness as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller to cooperate with Buyer in its investigation of the Business. Without limiting the foregoing, Seller shall, subject to the requirements receipt of applicable Lawall required approvals of Governmental Authorities, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company permit Buyer and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants Representatives to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information conduct Post-Signing Due Diligence with respect to the business, properties and personnel environmental condition of the Company Real Property, including the collecting and analysis of samples of indoor or outdoor air, surface water, groundwater, or surface or subsurface land on, at, in, under or from the Real Property. Any investigation pursuant to this Section 6.02(a) shall be conducted in such manner as Acquiror not to interfere unreasonably with the conduct of the Business or Merger Sub may from time any other businesses of Seller. No investigation by Buyer or other information received by Buyer shall operate as a waiver or otherwise affect any representation, warranty, or agreement given or made by Seller in this Agreement. 57 Asset Purchase and Sale Agreement dated as of December 28, 2018 between Municipality of Anchorage and Chugach Electric Association, Inc.
(b) From the date hereof until the Closing, Buyer shall, for the purpose of enabling Seller to time reasonably requestconduct the Additional Seller Due Diligence, (iiia) furnish promptly to Acquiror Seller and Merger Sub a copy of each reportits Representatives with such financial, schedule operating and other document filed or received by data and information related to the Company assets and business of Buyer as Seller or any of its Subsidiaries during such period pursuant to Representatives may reasonably request for purposes of reviewing and evaluating Buyer’s financial condition, the requirements financial risks of the federal or state securities Laws transactions contemplated by this Agreement, and the proposed Debt Financing; and (ivb) instruct the Representatives of Buyer to cooperate with Seller in its due diligence investigation with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect Buyer. Any investigation pursuant to this clause (ivSection 6.02(b) shall be conducted in such manner as not to interfere unreasonably with the conduct of any businesses of Buyer. Except as provided in Section 6.22 and Section 8.07(b), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data no investigation by Seller or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege received by Seller shall operate as a waiver or attorney work product protectionotherwise affect any representation, warranty, or agreement given or made by Buyer in this Agreement.
(Bc) would violate an existing confidentiality obligation to any Person or any Law; providedAt the earliest practicable time, however, that in the case of clause (A) and (B), the Company shall, and Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents provide Buyer with the information noted on Exhibit A and reasonable follow-up requests with respect thereto.
(d) Prior to provide receipt of RCA Approval, the parties shall take initial steps to assess necessary integration planning, including those set forth on Section 6.02(d) of the Disclosure Schedules. Following receipt of RCA Approval, the parties shall work together to coordinate and finalize integration planning so as to enable Buyer to operate the Purchased Assets on the Closing Date, including taking the actions set forth on Section 6.02(d)(ii) of the Disclosure Schedules. In connection with such accessintegration planning, inspections, data or other information Seller and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company Buyer shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable appropriate, develop a plan for the transition of customers of the Business to Buyer in the circumstances. No investigation pursuant accordance with a plan intended to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject mitigate to the provisions extent reasonably possible any impact or cost to Seller’s customers and comply with all RCA requirements, including coordination of the Confidentiality Agreementtiming of initial notification of customers, inclusion of materials in Seller’s pre-Closing invoices relating to customer cut-over process, customer data conversion process, and sharing of meter and other technical information.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Chugach Electric Association Inc)
Access to Information. (ai) During the period from From the date of this Agreement continuing hereof until the earlier of (A) the valid termination of date this Agreement or is terminated pursuant to Article VII and (B) the Effective TimeClosing Date, subject to the requirements of applicable Lawupon reasonable prior notice, the Company Sellers shall, and shall cause its Subsidiaries the Acquired Entities to, (i) give Acquiror afford the representatives of Buyers and Merger Sub and their authorized officersthe Financing Sources reasonable access, employeesduring normal business hours, accountantsto the properties, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments books and records (including Tax Returns) of the Company Acquired Entities, including for the purposes of performing a non-invasive Phase I Environmental Site Assessment, and its Subsidiaries as Acquiror or Merger Sub may reasonably request furnish to the representatives of Buyers and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and Financing Sources such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such additional financial and operating data and other information with respect to regarding the business, properties and personnel business of the Company Acquired Entities as Acquiror Buyers or Merger Sub their representatives may from time to time reasonably request, (iii) furnish promptly request for purposes of consummating the transactions and preparing to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by operate the Company or any of its Subsidiaries during such period pursuant to the requirements business of the federal Acquired Entities following the Closing, in each case at the sole cost and expense of Buyers; provided, that, all such access and information need only be provided in accordance with the Confidentiality Agreement or state securities Laws and (iv) subject to such Persons agreeing to confidentiality undertakings substantially similar to those contained in the Confidentiality Agreement with respect to such information. BUYERS SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLERS, THEIR AFFILIATES (INCLUDING, PRIOR TO THE CLOSING, THE ACQUIRED ENTITIES) AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, EQUITYHOLDERS, COUNSEL, ACCOUNTANTS, FINANCIAL ADVISORS, ENGINEERS, CONSULTANTS AND OTHER ADVISORS AND REPRESENTATIVES FROM AND AGAINST ANY AND ALL PROCEEDINGS, LIABILITIES AND LOSSES ARISING OUT OF, RESULTING FROM, OR CAUSED BY, DIRECTLY OR INDIRECTLY, THE ACTS OR OMISSIONS OF BUYERS, THEIR AFFILIATES, OR ANY PERSON ACTING ON EITHER BUYERS’ OR THEIR AFFILIATES’ BEHALF IN CONNECTION WITH ANY DUE DILIGENCE CONDUCTED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY SITE VISITS, EXCEPT TO THE EXTENT SUCH PROCEEDINGS, LIABILITIES OR LOSSES ARISE FROM THE SOLE NEGLIGENCE OF ANY SELLER OR ITS AFFILIATES (INCLUDING, PRIOR TO THE CLOSING, THE ACQUIRED ENTITIES) OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS, PARTNERS, MEMBERS, EQUITYHOLDERS, COUNSEL, ACCOUNTANTS, FINANCIAL ADVISORS, ENGINEERS, CONSULTANTS AND OTHER ADVISORS AND REPRESENTATIVES. The foregoing indemnification and hold harmless obligation shall survive the matters set forth Closing or termination of this Agreement. Buyers shall comply fully with all rules, regulations, policies and instructions, including all health and safety policies and procedures, issued by any Acquired Entity or any third-party operator and provided to Buyers regarding each Buyer’s actions while upon, entering or leaving any property, including any insurance requirements that any Acquired Entity reasonably may impose on Section 6.03(acontractors authorized to perform work on any property owned or operated by any Acquired Entity.
(ii) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior Notwithstanding anything in this Agreement to the Company or its Subsidiaries responding to any request or submitting any documentation contrary:
(A) in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)no event shall Sellers, the Company and its Subsidiaries shall not agree to settle Partnership or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not their respective Affiliates be obligated to provide such accessany (1) access or information in violation of any applicable Law, inspections(2) information with respect to bids, data the identity of any bidder, confidentiality or non-disclosure agreements, letters of intent, expressions of interest or other proposals received in connection with transactions comparable to those contemplated by this Agreement or any information or analysis relating to any such communications, (3) information the extent that to do so (A) disclosure of which could reasonably be expected to jeopardize an any applicable privilege (including the attorney-client privilege privilege) available to any of Sellers, any Acquired Entity or attorney work product protectionany of their respective Affiliates relating to such information, (4) information the disclosure of which would cause Sellers, any Acquired Entity or any of their respective Affiliates to breach a confidentiality obligation to which it is bound or (5) any Tax Return of Sellers or their respective Affiliates;
(B) would violate an existing confidentiality obligation the investigation contemplated by Section 6.1(d)(i) shall not unreasonably interfere with any of the businesses, personnel or operations of any Seller, any Acquired Entity or any of their respective Affiliates, and shall not include any Phase II environmental site assessments or any other invasive or intrusive investigations or other testing, analysis or sampling of any media (including with respect to environmental matters);
(C) the auditors and accountants of any Seller, any Acquired Entity or any of their respective Affiliates shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or any Lawaccountants; providedand
(D) if so requested by Sellers, however, that in the case of clause (A) and (B), the Company shall, and Buyers shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry enter into a customary joint defense agreement or other common interest agreement with Sellers, the Acquired Entities or by providing such any of their respective Affiliates with respect to any information provided to Buyers, or to which Buyers gains access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 6.1(d)(ii)(D) or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretootherwise.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement (Crestwood Equity Partners LP)
Access to Information. (a) During Subject to Buyer's obligations under the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeConfidentiality Agreement, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries Affiliates to, (i) give Acquiror and Merger Sub and their authorized afford to the officers, employees, financing sources and authorized representatives of Buyer (including independent public accountants, investment bankers, counsel financial advisors and other Representatives attorneys) reasonable access (during regular normal business hours hours, upon reasonable advance notice) , to such employees, the offices, data centers properties, plants and other facilities at reasonable times business and to such books, Contracts, commitments and financial records (including computer files, retrieval programs and similar documentation, any Tax ReturnsReturns and any other information relating to Taxes and promptly after they are available, monthly and quarterly financial statements of the Business) of the Company Purchased Entities and its Subsidiaries as Acquiror or Merger Sub may reasonably request the Business, and instruct to the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data senior management and other employees of the Companies, to the extent Buyer shall reasonably deem necessary or desirable and shall furnish to Buyer or its authorized representatives such additional information concerning the Purchased Entities or the Business as shall be reasonably requested (including information relating to the classification of a Purchased Entity for U.S. federal income Tax purposes and information relevant to Buyer's decision as to whether or not to make a Non-U.S. Section 338 Election with respect to a Purchased Entity or to calculation of any Subpart F Income); PROVIDED, HOWEVER, that Seller shall not be required to violate any obligation of confidentiality to which Seller, the businessSelling Entities or the Companies is subject or to waive any privilege which any of them may possess in discharging its obligations pursuant to this SECTION 7.1; PROVIDED, properties and FURTHER, that Seller shall not be required to furnish or otherwise make available to Buyer information where the sharing of such information would violate any Competition Law or other Requirements of Law; and, PROVIDED, FURTHER, that neither Buyer nor any of its officers, employees, agents or representatives shall have access to any personnel of the Company as Acquiror Business or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy any other businesses of each report, schedule and other document filed or received by the Company Seller or any of its Subsidiaries during such period pursuant to Affiliates other than the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation persons identified in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters SCHEDULE 7.1 without the Seller's prior written consent of Acquirorconsent, which consent shall not be unreasonably withheld withheld, delayed or delayedconditioned. Notwithstanding Buyer agrees that such investigation shall be conducted in such a manner as not to interfere unreasonably with the foregoingoperations of Seller, the Company and Companies or the Selling Entities. Prior to Closing, Seller shall reasonably cooperate with Buyer to identify services currently provided by Seller or any of its Subsidiaries shall not be obligated to provide such access, inspections, data or Affiliates (other information to than the extent that to do so (APurchased Entities) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person of the Purchased Entities which are necessary to operate the Business and are not included in the Assets and which no Purchased Entity or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction their Affiliates after Closing will be capable of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoperforming immediately following Closing.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Tupperware Corp)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable LawSeller will, the Company shall, at reasonable times and shall cause its Subsidiaries to, upon reasonable notice: (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other its Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesits managerial personnel and to all books, officesrecords, data centers plans, equipment, offices and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of properties constituting the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, Purchased Assets; (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, and permit Buyer to make such reasonable Inspections thereof as Buyer may request; (iii) furnish promptly to Acquiror and Merger Sub Buyer at its request a copy of each material report, schedule and or other document filed or received by the Company Seller or any of its Subsidiaries during such period pursuant Affiliates with respect to the requirements of Purchased Assets with the federal SEC, FERC, PaPUC, PaDEP or state securities Laws any other Governmental Authority; and (iv) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the representations and warranties of Seller contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply. Notwithstanding anything in this Section 6.2 to the contrary, Seller will only furnish or provide such access to Transferring Employee Records and will not furnish or provide access to other employee personnel records or medical information unless required by law or specifically authorized by the affected employee, nor shall Buyer have the right prior to the Closing to administer to any of Seller's employees any skills, aptitudes, psychological profile, or other employment related test. Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or underneath the Purchased Assets.
(b) Each Party shall, and shall use its best efforts to cause its Representatives to, (i) keep all Proprietary Information of the other Party confidential and not to disclose or reveal any such Proprietary Information to any person other than such Party's Representatives and (ii) not use such Proprietary Information other than in connection with the consummation of the transactions contemplated hereby. After the Closing Date, any Proprietary Information to the extent related to the Purchased Assets shall no longer be subject to the restrictions set forth herein. The obligations of the Parties under this Section 6.2(b) shall be in full force and effect for three (3) years from the date hereof and will survive the termination of this Agreement, the discharge of all other obligations owed by the Parties to each other and the closing of the transactions contemplated by this Agreement.
(c) For a period of seven (7) years after the Closing Date (or such longer period as may be required by applicable law or Section 6.8(e)), each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance written notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.2(c). If the matters set forth on Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period (or any such longer period), such Party shall, prior to such disposition, give the other Party a reasonable opportunity at such other Party's reasonable expense, to segregate and remove such books and records as such other Party may select.
(d) Notwithstanding the terms of Section 6.03(a6.2(b) above, the Parties agree that prior to the Closing Buyer may reveal or disclose Proprietary Information to any other Persons in connection with Buyer's financing or risk management if reasonably necessary of its purchase of the Disclosure LetterPurchased Assets or any equity participation in Buyer's purchase of the Purchased Assets (provided that such Persons agree in writing to maintain the confidentiality of the Proprietary Information in accordance with this Agreement).
(e) Upon the other Party's prior written approval (which will not be unreasonably withheld or delayed), consult either Party may provide Proprietary Information of the other Party to the PaPUC, the SEC, the FERC or any other Governmental Authority with Acquiror jurisdiction or any stock exchange, as may be necessary to obtain Seller's Required Regulatory Approvals, or Buyer Required Regulatory Approvals, respectively, or to comply generally with any relevant law or regulation. The disclosing Party will seek confidential treatment for the Proprietary Information provided to any Governmental Authority and the disclosing Party will notify the other Party as far in advance as is practicable of its intention to release to any Governmental Authority any Proprietary Information.
(f) Except as specifically provided herein or in the Confidentiality Agreement, nothing in this Section shall impair or modify any of the rights or obligations of Buyer or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(g) Except as may be permitted in the Confidentiality Agreement, Buyer agrees that, prior to the Closing Date, it will not contact any vendors, suppliers, employees, or other contracting parties of Seller or its Affiliates with respect to any decisions aspect of a legal nature related thereto and prior to the Company Purchased Assets or its Subsidiaries responding to any request or submitting any documentation in response theretothe transactions contemplated hereby, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld withheld.
(h) Except as required by law, negotiation or delayed. Notwithstanding legal process, unless otherwise agreed to in writing by the foregoingBuyer, the Company and its Subsidiaries which shall not be obligated to provide unreasonably withheld, for a period commencing on the Closing Date and terminating three years after such access, inspections, data date the Seller shall keep (i) all Proprietary Information confidential and not disclose or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation reveal any Proprietary Information to any Person other than its Representatives who are actively and directly participating in the transactions contemplated hereby or who otherwise need to know the Proprietary Information for such purpose and to cause those Persons to observe the terms of this Section 6.2(h) and, (ii) not to use Proprietary Information for any purpose other than consistent with the terms of this Agreement. The Seller shall continue to hold all Proprietary Information according to the same internal security procedures and with the same degree of care regarding its secrecy and confidentiality as currently applicable thereto. The Seller shall notify the Buyer of any unauthorized disclosure to third parties that it discovers, and shall endeavor to prevent any further such disclosures. The Seller shall be responsible for any breach of the terms of this Section 6.2(h) by the Seller or its Representatives. After the Closing Date, in the event that the Seller is requested pursuant to, or required by, applicable law or regulation or by legal process to disclose any Proprietary Information, or any Law; providedother information concerning the Purchased Assets, howeveror the transactions contemplated hereby, the Seller shall provide the Buyer with prompt notice of such request or requirement in order to enable the Buyer to seek an appropriate protective order or other remedy, to consult with the Seller with respect to taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with the terms of this Section 6.2(h). The Seller agrees not to oppose any action by the Buyer to obtain a protective order or other appropriate remedy after the Closing Date. In the event that in no such protective order or other remedy is obtained, or that the case Buyer waives compliance with the terms of clause (A) and (Bthis Section 6.2(h), the Company shall, and Seller shall cause furnish only that portion of the Proprietary Information which the Seller is advised by counsel is legally required. In any such event the Seller shall use its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsensure that all Proprietary Information and other information that is so disclosed will be accorded confidential treatment.
(i) Buyer shall be entitled to inspect, in accordance with this Section 6.2(i), all of the Purchased Assets located adjacent to any Point of Interconnection (as defined in the Interconnection Agreement), as shown in Schedule A to the Interconnection Agreement, to verify and/or determine the accuracy of the data, drawings, and records described in such Schedule. The Parties shall cooperate to schedule Buyer's inspection at the Plant so that any interference with the operation of the Plant is minimized, to the extent practicable in reasonably feasible, and so that Buyer may complete its inspections of the circumstances. No investigation pursuant to Plant within thirty (30) working days of commencement of inspections and within two (2) months after the execution of this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoAgreement.
(bii) All information obtained by Acquiror Seller shall provide, or Merger Sub pursuant shall cause to this Section 6.03 shall be subject provided, to Buyer, access to the provisions Plant at the times scheduled for the inspections. Seller shall provide qualified engineering, operations, and maintenance personnel to escort Buyer's personnel and to assist Buyer's personnel in conducting the inspections. Seller and Buyer shall each bear their own costs of participating in the inspections. At a mutually convenient time not more than one (1) month after Buyer has completed its inspections, the Parties shall meet to discuss whether, as a result of the Confidentiality inspections, it is appropriate to modify Schedule A to the Interconnection Agreement to portray more accurately the Points of Interconnection. Any modification to any portion of Schedule A of the Interconnection Agreement to which the Parties agree shall thereafter be deemed part of Schedule A of the Interconnection Agreement for all purposes under the Interconnection Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Electric Co)
Access to Information. (a) During Taskport shall afford to EXSI and shall cause its independent accountants to afford to EXSI, and its accountants, counsel and other representatives, reasonable access during normal business hours during the period from prior to the date of Closing to all information concerning Taskport, as EXSI may reasonably request, provided that Taskport shall not be required to disclose any information which it is legally required to keep confidential. EXSI will not use such information for purposes other than this Agreement continuing and will otherwise hold such information in confidence (and EXSI will cause its consultants and advisors also to hold such information in confidence) until such time as such information otherwise becomes publicly available, and in the earlier event of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and for any reason EXSI shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionreturn, or (B) would violate an existing confidentiality obligation cause to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsbe returned, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify disclosing party all documents obtained from Taskport, and any representationcopies made of such documents, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror extracts and Merger Sub related theretocopies thereof.
(b) All information obtained by Acquiror or Merger Sub pursuant EXSI shall afford to this Section 6.03 Taskport and shall be subject cause its independent accountants to afford to Taskport, and its accountants, counsel and other representatives, reasonable access during normal business hours during the period prior to the provisions Closing to all of EXSI's properties, books, contracts, commitments and records and to the Confidentiality Agreementaudit work papers and other records of EXSI's independent accountants. During such period, EXSI shall use reasonable efforts to furnish promptly to Taskport such information concerning EXSI as Taskport may reasonably request, provided that EXSI shall not be required to disclose any information which it is legally required to keep confidential. Taskport will not use such information for purposes other than this Agreement and will otherwise hold such information in confidence (and Taskport will cause its respective consultants and advisors also to hold such information in confidence) until such time as such information otherwise becomes publicly available, and in the event of termination of this Agreement for any reason Taskport shall promptly return, or cause to be returned, to the disclosing party all documents obtained from EXSI, and any copies made of such documents, extracts and copies thereof.
Appears in 1 contract
Access to Information. (a) During Seller shall afford to Purchaser reasonable access, upon reasonable notice during normal business hours, consistent with applicable Law and in accordance with the reasonable procedures established by Seller, during the period from prior to the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, Closing (subject to Section 6.1(b)), to the requirements of applicable Lawproperties, the Company shall, and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments records and records (including Tax Returns) personnel of the Company Seller and its Subsidiaries as Acquiror relating to the Industrial Wood Business to the extent necessary to consummate the Transaction; provided, however, that (i) neither Seller nor any of its Affiliates shall be required to violate any obligation of confidentiality to which it or Merger Sub any of its Affiliates may reasonably request and instruct be subject in discharging their obligations pursuant to this Section 5.4(a) to the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and extent Seller or such other information as Acquiror or Merger Sub may reasonably request, Affiliate is advised by legal counsel of such violation; (ii) furnish Acquiror Seller shall make available, or cause its Subsidiaries to make available, Industrial Wood Employee and Merger Sub with such financial and operating data and other information with respect Delayed Transfer Industrial Wood Employee personnel files after the Closing Date to the business, properties and extent the disclosure of such personnel of files prior to the Company as Acquiror or Merger Sub may from time Closing Date would reasonably be expected to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company subject Seller or any of its Subsidiaries during such period pursuant to the requirements risk of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letterliability and, consult with Acquiror with respect to any decisions Industrial Wood Employees and Delayed Transfer Industrial Wood Employees, if and when Purchaser provides Seller with notice that the applicable Industrial Wood Employee or Delayed Transfer Industrial Wood Employee has provided Purchaser with a release permitting transfer of a legal nature related thereto those files to the extent such release is required by Law (provided that Seller shall not make, or cause to be made, available medical records, workers compensation records or the results of any drug testing; and that Purchaser shall indemnify and hold Seller and its Affiliates and their respective Affiliates harmless from any Liabilities arising out of or relating to the transfer of such personnel files); and (iii) prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response theretoClosing Date, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries Purchaser shall not agree to settle conduct any Phase II environmental site assessment or provide conduct any remedy with regard to invasive testing or any such matters sampling of soil, sediment, surface water, ground water or building material at, on, under or within any facility on the Owned Real Property or any other property of Seller or any of its Affiliates without the prior written consent of AcquirorSeller (which may be granted or denied in Seller’s sole discretion).
(b) Purchaser agrees that any investigation undertaken pursuant to the access granted under Section 5.4(a) shall be conducted in such a manner as not to unreasonably interfere with the operation of the Industrial Wood Business, and none of Purchaser or any of its Affiliates or Representatives shall communicate with any of the employees of the Industrial Wood Business without the prior written consent of Seller, which consent shall not be unreasonably withheld withheld, conditioned or delayed. Notwithstanding anything to the foregoingcontrary contained in this Agreement, neither Seller nor any of its Affiliates shall be required (i) pursuant to Section 5.4(a), or (ii) following the Company and its Subsidiaries shall not be obligated Closing pursuant to the terms of this Agreement or the Transaction Documents (other than Section 5.4(a)), to provide access to or disclose information where, upon the advice of counsel, such access, inspections, data access or other information to the extent that to do so (A) could reasonably be expected to disclosure would jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to contravene any Person or any applicable Law; provided, however, that nothing in this sentence shall limit the transfer of any information to Purchaser that is included in the case Purchased Assets or otherwise limit disclosure of clause information in connection with any subsequent support to be provided in connection with any Proceeding or investigation.
(Ac) At and (B)for six years after the Closing, the Company Purchaser shall, and shall cause its Subsidiaries Affiliates to, use commercially afford Seller, its Affiliates and their respective Representatives, during normal business hours, upon reasonable efforts notice, access (which shall not interfere unreasonably with the conduct of Purchaser’s business) to obtain any required consents the properties, books, Contracts, and records of the Industrial Wood Business related to provide the conduct of the Industrial Wood Business before the Closing to the extent that such accessaccess may be reasonably requested by Seller solely in connection with Seller’s or its Affiliates’ preparation of financial statements, inspectionsTaxes, data or other information reporting obligations and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable LawLaws (which, and otherwise for the Company shallavoidance of doubt, and shall cause its Subsidiaries torequire Purchaser to provide access to Seller on or after the Closing Date to properties of Purchaser in order to allow Seller to perform a physical inventory in connection with the preparation of the Closing Statement) other than any such access that would, use reasonable best efforts to institute appropriate substitute disclosure arrangementsas determined in good faith by Purchaser, to jeopardize any attorney-client privilege, protection under the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant work product doctrine or other agreement made by the Company legal privilege; provided, however, that nothing in this Agreement shall limit any of Seller’s or the conditions any of Acquiror and Merger Sub related theretoits Affiliates’ rights of discovery pursuant to any applicable Laws.
(bd) All information obtained by Acquiror or Merger Sub pursuant Purchaser agrees to this Section 6.03 shall be subject to hold all the provisions books and records of the Confidentiality AgreementIndustrial Wood Business existing on the Closing Date that are Purchased Assets and not to destroy or dispose of any thereof for a period of six years from the Closing Date, and thereafter, if it desires to destroy or dispose of such books and records, to offer first in writing at least 30 days prior to such destruction or disposition to surrender them to Seller.
Appears in 1 contract
Sources: Asset Purchase Agreement (Axalta Coating Systems Ltd.)
Access to Information. (a) During To the period from extent permitted by applicable Law, between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable LawSeller will, the Company shall, during ordinary business hours and shall cause its Subsidiaries toupon reasonable notice, (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Buyer’s Representatives reasonable access to the Purchased Assets; (during regular business hours upon ii) permit Buyer to make such reasonable notice) inspections thereof, including survey work pursuant to such employeesSection 7.21 hereof, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Business as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer with a copy of each material report, schedule and schedule, or other document principally relating to the Business filed or submitted by Seller with, or received by the Company or Seller from, any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawGovernmental Entity; provided, however, that in the case of clause (A) any such investigation will be conducted in such a manner as not to interfere unreasonably with the operation of the Business or any other Person, (B) Buyer will indemnify and hold harmless Seller from and against any Losses caused to Seller by any action of Buyer or Buyer’s Representatives while present on any of the Purchased Assets or other premises to which Buyer is granted access hereunder (including restoring any such premises to the condition substantially equivalent to the condition such premises were in prior to any such investigation), (C) Seller will not be required to take any action which would constitute a waiver of the attorney-client privilege, and (B)D) Seller need not supply Buyer with any information which Seller is under a contractual or other legal obligation not to supply; provided, the Company shallhowever, and shall cause its Subsidiaries to, if Seller relies upon clauses (C) or (D) as a basis for withholding information from disclosure to Buyer it will use commercially reasonable efforts to put safeguards in place to protect such privilege or promptly obtain any required consents to provide such access, inspections, data a waiver of the contractual or other information and take such other action (such legal obligation, as the redaction of identifying or confidential informationapplicable, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsfailing which, to the fullest extent practicable possible without causing a waiver of the attorney-client privilege, or a violation of a contractual or legal obligation, as the case may be, Seller will provide Buyer with a description of the information withheld and the basis for withholding such information. Notwithstanding anything in this Section 7.2 to the contrary, any investigation of environmental matters by or on behalf of Buyer will be limited to visual inspections and site visits commonly included in the circumstances. No investigation pursuant scope of “Phase 1” level environmental inspections, and Buyer will not have the right to this Section 6.03 perform or by Acquiror conduct any other sampling or its Affiliates shall affect testing at, in, on, or be deemed to modify underneath any representation, warranty, covenant or other agreement made by of the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoPurchased Assets.
(b) All Buyer will, and will cause its Affiliates and Buyer’s Representatives to, hold in strict confidence and not use or disclose to any other Person all Confidential Information. “Confidential Information” means all information in any form heretofore or hereafter obtained from Seller in connection with Buyer’s evaluation of the Business or the Purchased Assets or the negotiation of this Agreement, whether pertaining to financial condition, results of operations, methods of operation or otherwise, other than information which is in the public domain through no violation of this Agreement or the Confidentiality Agreement by Acquiror Buyer, its Affiliates, or Merger Sub pursuant to this Section 6.03 shall be subject Buyer’s Representatives. Notwithstanding the foregoing, Buyer may disclose Confidential Information to the provisions extent that such information is required to be disclosed by Buyer by Law or in connection EXECUTION COPY with any proceeding by or before a Governmental Entity, including any disclosure, financial or otherwise, required to comply with any SEC rules. In the event that Buyer believes any such disclosure is required, Buyer will give Seller notice thereof as promptly as possible and will cooperate with Seller in seeking any protective orders or other relief as Seller may determine to be necessary or desirable. In no event will Buyer make or permit to be made any disclosure of Confidential Information other than to the Confidentiality Agreementextent Buyer’s legal counsel has advised in writing is required by Law, and Buyer will use its commercially reasonable efforts to assure that any Confidential Information so disclosed is protected from further disclosure to the maximum extent permitted by Law. If the transactions contemplated hereby are not consummated, Buyer will promptly return to Seller all copies of any Confidential Information, including any materials prepared by Buyer or Buyer’s Representatives incorporating or reflecting Confidential Information, and an officer of Buyer shall certify in writing compliance by Buyer with the foregoing.
Appears in 1 contract
Access to Information. (a) During the period from Beginning on the date of this Agreement continuing until and ending on the earlier Closing Date, Seller and each of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and Selling Subsidiaries shall cause its Subsidiaries to, (i) give Acquiror Purchaser and Merger Sub its authorized representatives reasonable access during normal business hours and on reasonable notice to the Transferred Assets, subject to Seller’s or the Selling Subsidiary’s, as applicable, policies and regulations regarding safety and security, provided that such access shall be granted under conditions which will not unreasonably interfere with the business and operations of Seller, (ii) give Purchaser and its authorized representatives reasonable access during normal business hours and on reasonable notice to the books and records of the Seller Parties and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries Affiliate as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub they may reasonably request, (iiiii) permit Purchaser and its authorized representatives to make such inspections as they may reasonably request, including any investigation Purchaser deems reasonably necessary or appropriate to assess the environmental condition of the Transferred Assets or the ownership and operation of the Transferred Assets or the Easement Area, provided that such access shall be granted under conditions which will not unreasonably interfere with the business and operations of Seller or any of the Selling Subsidiaries, as applicable, and (iii) cause its officers, employees and agents to furnish Acquiror Purchaser and Merger Sub its authorized representatives with such financial and operating data and other information, including assessments, reports, or other information regarding environmental matters pertaining to the Transferred Assets or the ownership and operation of the Transferred Assets and relevant to the continuing ownership and operation of the Transferred Assets or relevant to the transition of ownership and operation of the Transferred Assets hereunder, that is available with respect to the business, properties Transferred Assets or the ownership and personnel operation of the Company Transferred Assets as Acquiror or Merger Sub they may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in Seller may restrict access to the case extent reasonably necessary to (x) ensure compliance with antitrust and anticompetition laws, (y) preserve the secrecy of clause (A) confidential information to the extent not related to the ownership and operation of the Transferred Assets and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client z) preserve legal privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute . The parties hereto will make appropriate substitute disclosure arrangements, arrangements under circumstances in which the restrictions of the proviso to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretopreceding sentence apply.
(b) All Purchaser will hold and will cause its representatives to hold in strict confidence all documents and information obtained by Acquiror concerning the Transferred Assets or Merger Sub pursuant the ownership and operation of the Transferred Assets to this Section 6.03 the extent and in accordance with the terms and conditions of the Confidentiality Agreement. Notwithstanding the foregoing or any provision of the Confidentiality Agreement, Seller and the Selling Subsidiaries acknowledge and agree that, from and after the Closing, all information relating to the Transferred Assets or the ownership and operation of the Transferred Assets shall be deemed to be confidential information of Purchaser and shall not be subject to the provisions terms of the Confidentiality Agreement.
(c) For seven (7) years following the Closing Date consistent with Seller’s record retention policies as currently in effect or subsequently modified, Seller will retain, at Seller’s sole expense, any records and documents relating to the Transferred Assets or the ownership and operation of the Transferred Assets that were retained by Seller or any of its Affiliates (including the Selling Subsidiaries) under this Agreement (including any Books and Records). During such period, Seller will afford to Purchaser, its counsel and accountants, during normal business hours and on reasonable advance notice, reasonable access to such records and documents relating to the ownership and operation of the Transferred Assets retained by Seller and permit the copying thereof at Purchaser’s expense. Following the expiration of such period, Seller may dispose of any such records and documents relating to the Transferred Assets or the ownership and operation of the Transferred Assets in accordance with Seller’s document retention policies, provided that prior to such disposal, Seller provides Purchaser with reasonable advance notice of such proposed disposal and uses commercially reasonable efforts to allow Purchaser to remove such records, at Purchaser’s sole cost and expense.
(d) After the Closing Date, Seller and each of the Selling Subsidiaries shall, at the request of Purchaser, (i) provide reasonable assistance in the collection of information or documents; (ii) make Seller’s or any Selling Subsidiary’s employees available when reasonably requested by Purchaser in connection with claims or actions brought by or against third parties based upon events or circumstances which either concern Assumed Liabilities or as to which Seller’s employees would have relevant knowledge or information; and (iii) otherwise reasonably cooperate with Purchaser in connection with the contest or defense of such claims or actions. Purchaser shall reimburse Seller for all reasonable out-of-pocket costs and expenses incurred by Seller in providing said assistance. In each of the foregoing cases all such cooperation and assistance shall be during business hours and on reasonable notice, and subject to any legal privilege reasonably asserted by Seller. Seller shall not be required to provide any such assistance and cooperation with respect to any matter which involves, in Seller’s legal counsel’s opinion, a conflict of interest between Seller and Purchaser; provided, that, in the case of privileged material, the Seller shall use reasonable efforts to enter into such joint defense agreements or similar arrangement, so as to allow for disclosure without the loss of privilege.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, Seller will, subject to the requirements of applicable LawConfidentiality Agreement, the Company shall, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives its representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall books, officesrecords, data centers plants, offices and other facilities at reasonable times and to such booksproperties constituting the Auctioned Assets, Contracts, commitments and records (including Tax Returns) for the purpose of observing the operation by Seller of the Company and its Subsidiaries Auctioned Assets, (ii) permit Buyer to make such reasonable inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Auctioned Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer upon request a copy of each material report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure LetterAuctioned Assets filed by Seller with, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)received by Seller from, the Company and its Subsidiaries shall not agree to settle PSC or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawFERC; provided, however, that in the case of clause (A) any such activities shall be conducted in such a manner as not to interfere unreasonably with the operation of the Auctioned Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (B)C) Seller need not supply Buyer with (1) any information or access which Seller is under a legal obligation not to supply or (2) any information which Seller has previously supplied to Buyer. Notwithstanding anything in this Section 7.02 to the contrary, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any (I) Seller will not be required consents to provide such accessinformation or access to any employee records other than Transferring Employee Records, inspections(II) Buyer shall not have the right to perform or conduct any environmental sampling or testing at, data in, on, around or other information underneath the Auctioned Assets and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilegeIII) as is necessary Seller shall not be required to provide such access, data access or other information with respect to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 any Retained Asset or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoRetained Liabilities.
(b) All information obtained Unless otherwise agreed to in writing by Acquiror or Merger Sub pursuant Buyer, Seller shall, for a period commencing on the Closing Date and terminating three years after the Closing Date, keep confidential and shall cause its representatives to this Section 6.03 shall be subject to the provisions of keep confidential all Confidential Information (as defined in the Confidentiality Agreement) on the terms set forth in the Confidentiality Agreement. Except as contemplated by the following sentence, Seller shall not release any person from any confidentiality agreement now existing with respect solely to the Auctioned Assets or waive or amend any provision thereof. After the Closing Date, upon reasonable request of Buyer, Seller shall, to the maximum extent permitted by law and the applicable Bidder Confidentiality Agreement (as defined below), appoint Buyer to be Seller's representative and agent in respect of confidential information relating to the Auctioned Assets under the confidentiality agreements ("Bidder Confidentiality Agreements") between Seller and prospective purchasers of certain generation assets of Seller of which the Auctioned Assets form part.
(c) From and after the Closing Date, Buyer shall retain all Operating Records (whether in electronic form or otherwise) relating to the Auctioned Assets on or prior to the Closing Date. Buyer also agrees that, from and after the Closing Date, Seller shall have the right, upon reasonable request to Buyer, to receive from Buyer copies of any Operating Records or other information in Buyer's possession relating to the Auctioned Assets on or prior to the Closing Date and required by Seller in order to comply with applicable law. Seller shall reimburse Buyer for its reasonable costs and expenses incurred in connection with the foregoing sentence.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Consolidated Edison Co of New York Inc)
Access to Information. (a) During From and after the period from Dividend Date, each of Interim and WZE shall afford to the date other and to the other’s Representatives reasonable access and duplicating rights, during normal business hours and upon reasonable advance notice, to all Information within the possession or control of this Agreement continuing until such party relating to the earlier of other party’s business, Assets or Liabilities or relating to or arising in connection with the valid termination of this Agreement relationship between the parties on or prior to the Effective TimeDividend Date, insofar as such access is reasonably required for a reasonable purpose, subject to the requirements provisions below regarding Privileged Information. Without limiting the foregoing and except as otherwise provided in the Separation Documents, Information may be requested for audit, accounting, claims, litigation and Tax purposes, as well as for purposes of applicable Law, fulfilling disclosure and reporting obligations. In furtherance of the Company shall, and shall cause its Subsidiaries to, foregoing:
(a) Each party hereto acknowledges that:
(i) give Acquiror Each of Interim and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror WZE has or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, obtain Privileged Information;
(ii) furnish Acquiror there are a number of common matters affecting each or both of Interim and Merger Sub with such financial WZE, and operating data and other information with respect each have a common legal interest in the preservation of the confidential status of the Proprietary Information relating to the business, properties and personnel business of Interim or Information or relating to or arising in connection with the Company as Acquiror relationship between the parties on or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant prior to the requirements of the federal or state securities Laws and Dividend Date; and
(iv) with respect both Interim and WZE intend that the Transactions contemplated hereby and by the other Separation Documents and any transfer of Privileged Information in connection therewith shall not operate as a waiver of any applicable privilege.
(b) Each of Interim and WZE agrees not to disclose or otherwise waive any privilege attaching to any Privileged Information, or rights attaching to any Proprietary Information relating to the matters set forth business of Interim and WZE, respectively, or relating to or arising in connection with the relationship between Interim and WZE on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and or prior to the Company or its Subsidiaries responding Dividend Date, without providing prompt written notice to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without obtaining the prior written consent of Acquirorthe other, which consent shall not be unreasonably withheld withheld, delayed or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Lawconditioned; provided, however, that in the case of clause (A) Interim and (B)WZE may make such disclosure or waiver with respect to Privileged Information, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain or rights any required consents to provide Proprietary Information if such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information Information relates solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions pre-Separation business of the Confidentiality Agreementother.
Appears in 1 contract
Sources: Separation Agreement (Interim HealthCare of Wyoming, Inc.)
Access to Information. (a) During In addition to the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or rights granted by Sections 6.1(b), (c) and (d), between the Effective TimeDate and the Closing Date, Seller will, and will use Commercially Reasonable Efforts to cause NMC to, during ordinary business hours, upon reasonable notice and subject to compliance with all applicable NRC rules and regulations and other applicable Laws and subject to approval in advance by the requirements of applicable Law, the Company shall, and Seller’s Agent(s) which approval shall cause its Subsidiaries to, not be unreasonably withheld or delayed (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Buyer’s Representatives reasonable access (during regular business hours upon reasonable notice) to such employeesall management personnel engaged in the operation of the Included Assets and all books, officesdocuments, data centers records, plants, offices and other facilities at and properties constituting the Included Assets; (ii) permit Buyer to make such reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties Included Assets and personnel of the Company Palisades Employees and the Big Rock ISFSI Employees as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer a copy of each report, schedule and or other document filed or received by it since the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) date hereof with respect to the matters set forth on Section 6.03(aIncluded Assets with the NRC, FERC or any other Governmental Authority having jurisdiction over the Included Assets; provided, however, that (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Disclosure LetterIncluded Assets, consult (B) Seller shall not be required to take any action which would constitute a waiver of the attorney- client privilege, and (C) Seller need not supply Buyer with Acquiror any information that Seller is legally prohibited from supplying. Seller will use its Commercially Reasonable Efforts to cause NMC to provide Buyer or Buyer’s Representatives with access to the Transferred Employee Records that it has, but Seller shall not be required to provide or cause to be provided access to other employee records or medical information unless required by Law or specifically authorized by the affected employee. Notwithstanding anything in this Section 6.2 to the contrary, Seller shall only provide or cause to be provided such access to Transferred Employee Records and personnel and medical records as is permitted by Law or required by legal process or subpoena. In addition, Seller will use Commercially Reasonable Efforts to cause NMC to provide Buyer or Buyer’s Representatives with access to NMC personnel engaged in the supervision, operation, maintenance or otherwise supporting the Included Assets. To the extent not prohibited by applicable Law, Seller shall cause NMC to deliver in a timely manner to Buyer all documents, electronic files and records in a format sufficient (as reasonably determined by Buyer) to facilitate the anticipated Closing. Without limiting the generality of the foregoing, four (4) weeks prior to the anticipated Closing Date, (A) Seller shall provide, or cause NMC to provide, to Buyer a list of the Palisades Employees and Big Rock ISFSI Employees anticipated to become Transferred Employees, and (B) Seller shall cooperate, and shall cause NMC to cooperate, with Buyer to enable Buyer to document the transfer of the Transferred Employees according to Buyer’s or Buyer’s Affiliate’s standard practices and employment prerequisites.
(b) Buyer and Seller acknowledge that all information furnished to or obtained by Buyer or Buyer’s Representatives pursuant to either Section 6.1 or this Section 6.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as Proprietary Information.
(c) For a period of five (5) years following the Closing Date (or such other date as the Parties may agree in writing), and in the case of books and records relating to the Decommissioning Funds, until the completion of Decommissioning, and subject to all applicable NRC rules and regulations, each Party and its respective Representatives shall have reasonable access to all of the Business Books and Records, including all Transferred Employee Records or other personnel and medical records required to be made available by Law, legal process or subpoena, in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities and Obligations or the Excluded Liabilities, or other matters relating to or affected by the operation of the Included Assets. Such access shall be afforded by the Party in possession of such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any such books and records prior to the expiration of the applicable time period specified in this Section 6.2(c), such Party shall, prior to such disposition, give the other Party a reasonable opportunity at such other Party’s expense, to segregate and remove such books and records as such other Party may select. Notwithstanding the foregoing, the right of access to medical records and other confidential employee records shall be subject to all applicable Laws.
(d) Seller agrees (i) not to release any Person (other than Buyer) from any confidentiality agreement now existing with respect to the Included Assets, or waive or amend any decisions provision thereof, and (ii) to assign at the Closing any rights arising under any such confidentiality agreement (to the extent assignable) to Buyer. Notwithstanding the foregoing, Seller agrees and shall use Commercially Reasonable Efforts to cause NMC to agree that following the Closing, no Transferred Employee shall be subject to any confidentiality, non- solicitation or non-competition obligation for the benefit of a legal nature related thereto Seller or its Affiliates or NMC.
(e) Notwithstanding the terms of the Confidentiality Agreement and Section 6.2(b) above, the Parties agree that prior to the Company Closing Buyer may reveal or its Subsidiaries responding disclose Proprietary Information to any request or submitting any documentation other Persons to the extent reasonably necessary in response theretoconnection with Buyer’s financing and risk management of the Included Assets, provide Acquiror a reasonable opportunity and, to review any such submission, response or related documentation and provide comments; provided the extent that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller consents, which consent shall not be unreasonably withheld or delayed. Notwithstanding , to such Persons with whom Buyer expects it may have business dealings regarding the foregoing, Included Assets from and after the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawClosing Date; provided, however, that all such Persons agree in writing to maintain the confidentiality of the Proprietary Information on substantially the same terms and conditions as those contained in the case Confidentiality Agreement; and provided, further, that Buyer shall be responsible for any breach by any such Persons of clause such confidentiality obligations.
(Af) Except as may be permitted under the Confidentiality Agreement, Buyer agrees that, prior to the Closing Date, it will not contact any vendors, suppliers, employees, or other contracting parties of NMC, Seller or Seller’s Affiliates with respect to any aspect of the Included Assets or the transactions contemplated hereby, without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed; provided, however, that such consent shall not (subject to the notice requirement set forth in the next sentence) be required during the period beginning sixty (60) days prior to the anticipated Closing Date through the Closing Date. Notwithstanding the foregoing, prior to the Closing, (i) Buyer may conduct general employee meetings addressing the following topics: payroll, transition, compensation, health and wellness benefits, pension plans, 401(k) plan transitions, post-Closing policies and procedures and other matters of general employee concern, provided that Buyer shall provide NMC with notice of any such meeting a reasonable period of time in advance thereof and shall reasonably coordinate with NMC as to the conduct thereof and (Bii) Buyer may make any contacts with Persons as expressly contemplated by this Agreement, including without limitation contacts with vendors, suppliers and customers in connection with obtaining assignments of contracts and discussing the post-Closing relationship with such Persons, provided that Buyer shall keep Seller reasonably informed as to the existence of any such contacts.
(g) Upon Buyer’s or Seller’s (as the case may be) prior written approval (which approval shall not be unreasonably withheld or delayed), Seller or Buyer (as the Company shallcase may be) may provide Proprietary Information of the other Party to the NRC, and shall cause its Subsidiaries toFERC or any other Governmental Authority having jurisdiction over the Included Assets or any stock exchange, use commercially reasonable efforts as may be necessary to obtain Seller’s Required Regulatory Approvals or Buyer’s Required Regulatory Approvals, respectively. The disclosing Party shall seek confidential treatment for the Proprietary Information provided to any required consents such Governmental Authority and the disclosing Party shall notify the other Party as far in advance as practical of its intention to provide release to any Governmental Authority any such access, inspections, data Proprietary Information.
(h) Seller or other information and take such other action Buyer (such as the redaction case may be) may, without the prior consent of identifying or confidential informationthe other Party, entry into a joint defense agreement or disclose Proprietary Information of the other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) Party as is may be necessary to provide comply generally with any applicable Laws, requests from Governmental Authorities or with the rules of any applicable stock exchange. The disclosing Party shall notify the other Party as far in advance as practical of its intention to release to any third party any such accessProprietary Information.
(i) The Parties agree that the Confidentiality Agreement shall remain in effect until the Closing. Thereafter, data the Parties agree that any restrictions contained in the Confidentiality Agreement with respect to Buyer’s disclosure of Proprietary Information shall terminate, other than with respect to the Proprietary Information of Seller that does not relate to the Included Assets. The Parties further agree that after the Closing Date, Seller shall keep confidential all Proprietary Information provided by Buyer or other information which Seller possesses with respect to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsIncluded Assets, to the extent practicable permitted by Law, and to the same extent and under the same conditions applicable to Buyer’s obligations with respect to Seller’s Proprietary Information as contained in the circumstances. No investigation pursuant Confidentiality Agreement between the Parties, but for a period of time equal to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by six (6) years from the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoClosing.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Asset Sale Agreement
Access to Information. (a) During the period from From the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective TimeClosing, subject to the requirements of applicable Law, the Company shallDuPont will, and shall will cause its Subsidiaries to, (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other its Representatives reasonable access (during regular business hours upon reasonable notice) to the DPC Books and Records and to such employeespersonnel, offices, data centers offices and other facilities at reasonable times and properties and Assets of the Transferred Business Companies and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and furnish such other information in respect of the operation of the Transferred Business as Acquiror or Merger Sub Buyer may reasonably request; PROVIDED, (ii) furnish Acquiror that all requests for access pursuant to this Section 5.2 shall be made in writing and Merger Sub shall be directed to and coordinated with the Chief Financial Officer of DPC or such financial person or persons as he shall designate; PROVIDED, FURTHER, that any such access shall be conducted at a reasonable time, upon reasonable advance notice to DuPont, and operating data in such a manner as not to interfere unreasonably with the operation of any business conducted by any Transferred Business Companies. In addition, during such period, DuPont and its Affiliates shall use their reasonable best efforts to allow Buyer and its Representatives to communicate with, and to review all work papers, schedules, memoranda and other documents prepared by, PricewaterhouseCoopers LLP during the course of its audit or review of the DPC Financial Statements, and such access shall be provided promptly after request by Buyer and/or its Representatives; PROVIDED, that the foregoing shall be subject to professional liability standards and PricewaterhouseCoopers LLP policy, which may include, without limitation, the requirement that Buyer and its Representatives sign an "indemnification letter" in the form generally used by PricewaterhouseCoopers LLP prior to receiving access to any materials prepared by PricewaterhouseCoopers LLP. All such information with respect and access shall be subject to the business, properties terms and personnel conditions of the Company as Acquiror confidentiality agreement dated January 30, 2001 between Buyer and DuPont (the "CONFIDENTIALITY AGREEMENT"). Notwithstanding anything to the contrary in this Agreement, neither DuPont nor its Subsidiaries (including the Transferred Business Companies) shall be required to disclose any information to Buyer or Merger Sub may from time its Representatives if doing so presents a significant risk of violating any Contract or Law to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company which DuPont or any of its Subsidiaries during such period pursuant is a party or to the requirements which it is subject or which it believes in good faith presents a significant risk, based on an opinion of counsel (which can be given by inside counsel), of resulting in a loss of the federal or state securities Laws and (iv) with respect ability to successfully assert a claim of Privilege; PROVIDED that the matters set forth on Section 6.03(a) parties hereto shall cooperate in seeking to find a way to allow disclosure of such information without resulting in a loss of the Disclosure Letter, consult with Acquiror with respect ability to any decisions successfully assert a claim of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayedPrivilege. Notwithstanding the foregoing, the Company and its Subsidiaries Sellers shall not be obligated required to provide any such access, inspections, data or other information as and to the extent that it relates to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B)Retained Business, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement Excluded Assets or the conditions of Acquiror and Merger Sub related theretoRetained Liabilities.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During Upon reasonable advance notice from the Buyer Entities, Sellers shall cause the Seller Group and the Acquired Entities to provide the Buyer Entities and their Representatives reasonable access, during normal business hours throughout the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject prior to the requirements of applicable LawClosing, to the Company shall, Seller Group’s (but solely to the extent Related to the Business) and shall cause its Subsidiaries to, (i) give Acquiror the Acquired Entities’ respective properties and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments books and records (including Tax Returns) of other than records related to skill and development training, performance, active medical restriction forms, fitness for duty and disciplinary actions), and during such period, Sellers shall furnish or make available to the Company Buyer Entities and its Subsidiaries their Representatives all readily available information Related to the Business as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer Entities may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that Sellers shall not be required to permit any such access, or to disclose any information, that in the case reasonable, good-faith judgment of clause Sellers would (Aa) and result in the disclosure of any trade secrets of any Person (B), other than the Company shall, and Acquired Entities or the Seller Group to the extent Related to the Business) or violate any applicable Law or (b) jeopardize protections afforded any Acquired Entity under the attorney-client privilege or the attorney work product doctrine; provide that Sellers shall cause its Subsidiaries to, use commercially reasonable efforts to obtain provide such information in a format or manner that would not disclose trade secrets or violate any applicable Law or jeopardize protections afforded any Acquired Entity under the attorney-client privilege or the attorney work product doctrine. All information obtained by the Buyer Entities and their Representatives under this Section 5.2 shall be treated as “Confidential Information” (as defined in the Confidentiality Agreement) for purposes of the Confidentiality Agreement, and any such information may be designated Clean Team Information in accordance with the Clean Team Confidentiality Agreement. Centene Corporation, a Delaware corporation (“Ultimate Parent”), is an express third-party beneficiary of this Section 5.2 to the extent related to the Buyer Entities’ obligations under the Confidentiality Agreement. Notwithstanding anything in this Section 5.2 to the contrary, neither Seller nor any of their respective Affiliates shall be required consents to provide such accessBuyer Entities or their Representatives with any access to properties or books and records, inspections, data or other information and take such other action (such as furnish the redaction of identifying Buyer Entities or confidential their Representatives with any information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in any such properties, books, records or information are related to the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement Excluded Assets or the conditions Retained Liabilities or the disclosure of Acquiror and Merger Sub related theretowhich would be in violation of applicable Privacy Laws.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Evolent Health, Inc.)
Access to Information. (a) During For six years after the period from Closing, the date of this Agreement continuing until Buyer will cause the earlier of the valid termination of this Agreement or the Effective Time, subject Company Parties to make available to the requirements of applicable LawSeller and its representatives, to the Company shallextent reasonably necessary for financial reporting, Tax and shall cause its Subsidiaries toaccounting matters, (i) give Acquiror or for reports or filings with any Governmental Authority, any and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments all books and records (including Tax Returns) of the Company Parties existing on the Closing Date relating to the Company Parties or any asset or liability of the Company Parties prior to the Closing; provided, that such access will be upon reasonable prior notice, during normal business hours, at the Seller’s expense and its Subsidiaries conducted in a manner so as Acquiror or Merger Sub may reasonably request and instruct not to unreasonably interfere with the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestBusiness; provided, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to further, that the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries Buyer shall not be obligated to provide provide, or cause to be provided, such access, inspections, data access or other information to the extent that to do doing so (A) could reasonably be expected to jeopardize would violate applicable Governmental Rules or any Business Agreement or result in loss of the protection of an attorney-client privilege or attorney work product protectionother legal immunity or protection from disclosure of the Buyer or the Company Parties, provided that, in each case, the Buyer shall use commercially reasonable efforts to provide the Seller and its representatives with access to such information or (B) would violate an existing confidentiality obligation make substitute disclosure arrangements to the extent reasonably practicable without risking a contravention of such agreement, applicable Governmental Rules or loss of such privilege. To the extent that the Company Parties’ auditors were not engaged directly by either of the Company Parties, Seller shall provide Buyer with the third party accountants’ and auditors’ contact information. Notwithstanding the foregoing, if the applicable Seller Party and the Buyer are adverse parties in a Proceeding, the Buyer shall not be required pursuant to this Section 8.02 to permit access to or disclose any Person or any Lawinformation that is pertinent thereto; provided, however, that nothing set forth herein shall affect the Seller Parties’ rights with respect to discovery or other rights the Seller Parties may have in the case absence of clause (A) this Section 8.02. The Buyer will cause the Company Parties to hold all of such books and (B)records in substantially the same manner as such books and records are held immediately prior to the Closing for a period of six years after the Closing Date unless at least 60 days prior to disposing of the same, the Company Buyer offers in writing to surrender them to the Seller, at the Seller’s cost. The Seller shall, and shall cause each of its Subsidiaries representatives to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation hold all Confidential Information disclosed pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by 8.02 in confidence in accordance with the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoconfidentiality provisions contained herein.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject Prior to the requirements of applicable LawClosing Date, Seller shall, during ordinary business hours and upon the Company shallreasonable prior request from Purchaser, afford Purchaser, and its Representatives, reasonable access (at the Purchaser’s sole expense) to Seller’s Business, books, records and employees to the extent relating to the Business and the Purchased Assets (including the Acquired Subsidiaries), and shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) provide to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company Purchaser and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and representatives such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such additional financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may Purchaser shall from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant . Notwithstanding anything to the requirements of contrary contained in this Agreement, Seller may restrict the federal or state securities Laws foregoing access and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld required to (I) provide any information or delayed. Notwithstanding access that Seller reasonably believes would violate applicable Law, including antitrust Laws and data protection Laws or the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data terms of any applicable Contract (including confidentiality obligations) or other information to the extent that to do so (A) could reasonably be expected to jeopardize an cause forfeiture of any attorney-client privilege or attorney work product protection, an expectation of client confidence or (B) would violate an existing confidentiality obligation any other rights to any Person or any Lawevidentiary privilege; provided, howeverfurther, that Purchaser and Seller shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the case good faith belief of clause Seller) reasonably be likely to cause such violation to occur or such privilege to be undermined with respect to such information, (AII) provide any information relating to the sale process, bids received from other Persons in connection with the Transactions and information and analysis (B)including financial analysis) relating to such bids, except as required under the Bid Procedures Order or (III) conduct, or permit Purchaser or any of its Representatives to conduct, any Phase I or Phase II environmental site assessment or investigation, or other environmental sampling relating to any Leased Real Property. Purchaser acknowledges and agrees that, notwithstanding anything to the contrary in this Agreement, all documents, materials, communications, analyses and other information relating to the sale process, bids received from Purchaser and other Persons in connection with the Transactions are in the possession of Seller as of the date of this Agreement and through the Closing will be transferred to Seller prior to, or as of, the Company shallClosing and Seller shall not be required to grant access to such documents, materials and other information to Purchaser or any of its Affiliates at any time.
(b) During the Pre-Closing Period, Seller shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents deliver, or cause to provide such accessbe delivered, inspectionsto Purchaser, data or other information a weekly report setting forth the cash balance of the Acquired Subsidiaries on a consolidated basis.
(c) From and take such other action after the Closing, for a period of ninety (such as 90) days, Seller shall, upon the redaction reasonable request of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable LawPurchaser, and otherwise at Purchaser’s sole expense, during ordinary business hours, in connection with Purchaser’s and its Representatives’ preparation and audit of the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, historical financial statements of the Business to the extent practicable in required for Purchaser to satisfy its reporting obligations with the circumstances. No investigation pursuant SEC, provide access to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
Seller’s auditors (b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions execution of any non-reliance and access letters required by any such auditors) and access to pre-Closing books and records relating to the Business; provided, that such cooperation and access would not conflict with any Disclosure Limitations or interfere with Seller’s or its Affiliates’ operations. Nothing in this Section 5.1(c) shall (i) require Seller or any other member of the Confidentiality AgreementParent Group to make any expenditure or incur any obligation on their own behalf or on behalf of Purchaser, or (ii) prohibit Seller from ceasing operations or winding up its affairs following the Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Xtant Medical Holdings, Inc.)
Access to Information. (a) During the period from the date of this Agreement continuing until the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company Sellers shall, and shall cause its Subsidiaries the Acquired Companies to, afford the authorized Representatives of Buyers (i) give Acquiror and Merger Sub and their authorized officers, employees, including independent public accountants, investment bankersattorneys, counsel consultants and other Representatives of Buyers’ lenders) reasonable access (during regular normal business hours upon reasonable notice) to such employees, the offices, data centers properties, employees and other facilities at reasonable times business and to such books, Contracts, commitments and financial records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information Acquired Companies to the extent Buyers shall deem reasonably necessary or desirable and shall furnish to Buyers or its authorized Representatives such additional information concerning the Interests, the Business and the operations of the Acquired Companies as shall be reasonably requested, as shall be reasonably necessary to enable Buyers or their Representatives to verify the accuracy of the Sellers’ representations and warranties contained in this Agreement, to verify that the covenants of Sellers contained in this Agreement have been complied with and to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Lawdetermine whether the conditions set forth in Article IX have been satisfied; provided, however, that (i) neither Sellers nor the Acquired Companies shall be required to violate any obligation of confidentiality, Court Order or Requirements of Laws to which either Seller or any Acquired Company is subject or to waive any privilege which any of them may possess in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation discharging their obligations pursuant to this Section 6.03 7.1 (it being understood that the Sellers shall cause the Acquired Companies to take reasonable actions to eliminate any such impediments to providing such information) and (ii) Buyers shall not conduct any invasive soil investigation with respect to any Acquired Company Property without written approval of the Sellers’ Representative, which approval shall not be unreasonably withheld, conditioned or by Acquiror or its Affiliates delayed. Buyers agree that such investigation shall affect or be deemed conducted in such a manner as not to modify any representation, warranty, covenant or other agreement made by interfere unreasonably with the Company in this Agreement or operations of the conditions of Acquiror and Merger Sub related theretoAcquired Companies.
(b) All Without limiting the generality of Section 7.1(a), prior to Closing, upon the reasonable written request of and reasonable advance notice from Buyers, the Sellers shall cause the Acquired Companies and their respective Representatives to use their commercially reasonable efforts to take the following actions, provided they do not unreasonably interfere with the ongoing operations of or existing contractual relationships with the Acquired Companies:
(i) providing financial, operating and other data and information, beyond those set forth in the Schedules and other information obtained and materials made available pursuant hereto, which Buyers may reasonably request in connection with Buyers’ Financing of the transactions contemplated by Acquiror this Agreement, including (x) unaudited interim consolidated financial statements for the Acquired Companies for the fiscal quarter ending March 31, 2015 and for each fiscal quarterly period (if any) which ends after such date but which is at least forty-five (45) days prior to the Closing Date, which unaudited interim consolidated financial statements shall be delivered to Buyers no later than forty-three (43) days following the end of each such fiscal quarterly period, and (y) unaudited monthly summary consolidated financial information for the Acquired Companies for each month ended after March 31, 2015 but which is at least thirty (30) days prior to the Closing Date, which unaudited monthly consolidated financial statements shall be delivered to Buyers no later than twenty-eight (28) days following the end of each such month;
(ii) making available members of its executive management team for purposes of due diligence sessions involving Lenders;
(iii) reviewing and providing comments of portions of offering and private placement memoranda, prospectuses and other informational and marketing materials, insofar as they relate to the Acquired Companies and the Business;
(iv) making available and cooperating with the Buyers to obtain the consent of the Acquired Companies’ independent accountants for any comfort letters, management letters or Merger Sub pursuant legal letters in connection with Buyers’ use of the Acquired Company’s financial statements; and
(v) if not objected to by the holders of the Acquired Company’s Indebtedness secured by Liens against Acquired Company Property, reasonably facilitating the granting of Liens in such Acquired Company Property; provided that no such security interest shall be effective prior to the Closing and shall be released immediately upon any termination of this Agreement. Sellers hereby consent to the use of the Company’s logo in connection with materials provided by Buyers to potential Lenders in connection with the Financing, provided Buyers shall consult with Sellers regarding the manner of such use, Sellers receive copies of all materials containing such logo and such use shall terminate upon termination of this Agreement. Notwithstanding the foregoing, in no event shall any Acquired Company or any Seller be obligated to pay any money to any Person or to offer or grant any other financial accommodations to any Person in connection with its obligations under this Section 6.03 7.1(b). If Buyers believe that Sellers are not performing their obligations as required under this Section 7.1(b), Buyers must promptly (but in any event within three (3) Business Days) advise Sellers in writing with particularity and afford Sellers a reasonable opportunity to cure any such non-performance, or else any non-performance is waived.
(c) The parties agree that no information provided, made available or otherwise accessed under this Section 7.1 or the other provisions of this Article VII (including Section 7.11) shall be modify the representations and warranties in Article V or constitute representations and warranties of Sellers for purposes of this Agreement nor relieve Buyers of their obligations under this Agreement except as expressly provided in Article IX.
(d) Notwithstanding anything herein to the contrary, for the avoidance of doubt, the transactions contemplated hereby and the provisions of this Section 7.1 are subject to the provisions of the Confidentiality Agreement. Buyers may furnish information under Section 7.1(b) to potential syndicate members, other potential lenders or potential participants, subject to their entry into customary written confidentiality agreements by such potential syndicate members, other potential Lenders or potential participants, and except as otherwise required by applicable securities laws and other Requirements of Law. Buyers agree to provide, upon request by the Sellers’ Representative, the identity of any potential lenders, syndicate members and potential participants that Buyer has been advised by the Lenders (or that Buyer otherwise is aware) have received confidential information concerning the Acquired Companies and the transactions contemplated by this Agreement in connection with the Financing.
(e) Notwithstanding any other provision of this Agreement, Sellers’ obligations under this Section 7.1 shall terminate upon consummation of Closing.
Appears in 1 contract
Sources: Equity Purchase Agreement (Kapstone Paper & Packaging Corp)
Access to Information. (a) During Hypercom shall have the period from the date of this Agreement continuing until the earlier opportunity to make a complete review of the valid termination books, records, business and affairs of this Agreement or the Effective Time, subject to the requirements of applicable LawSeller. To facilitate such review, the Company shallSeller shall provide to Hypercom and its agents complete access to all of its records and documents, shall provide to Hypercom with personal, bank and professional references, and shall cause use reasonable efforts to make available for consultation customers, employees, suppliers and distribution channels.
(b) On and after the Closing Date, Buyer will permit Seller or its Subsidiaries representatives and agents at reasonable times during business hours to inspect all files, books, records and accounts of the Business held by Buyer, as well as access to, and the cooperation of, any employee of any operations of the Business having knowledge of the information therein contained, if such inspection, access and cooperation are reasonably necessary (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and respond to such books, Contracts, commitments and records (including Tax Returns) a governmental investigation or for the defense by Seller of any litigation relating to the Company and its Subsidiaries as Acquiror Business prior to the Closing Date or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect for accounting reviews or audits of for judicial or administrative proceedings or determinations relating to the business, properties and personnel liability of the Company as Acquiror Seller for taxes or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and periods prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawClosing Date; provided, however, that in nothing herein shall be deemed to obviate the case rules of clause (A) and (B)discovery, the Company shallattorney-client privilege, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data attorney work product or other information similar rules and take such other action concepts in any dispute between Seller and/or the Members and Buyer.
(such as c) Buyer shall not dispose of any business records of the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely Business transferred to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation Buyer pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed Agreement until the later to modify any representation, warranty, covenant or other agreement made by occur of (i) the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions expiration of the Confidentiality Agreementapplicable tax statute of limitations, including extensions thereof, and (ii) the fifth anniversary of the Closing Date provided that, after such date, Buyer shall give Seller written notice of its intention to dispose of any part thereof, specifying the items to be disposed of in reasonable detail. Seller may, within a period of 60 days from receipt of any such notice, notify Buyer of its desire to retain one or more of the items to be disposed of. Buyer shall, upon receipt of such a notice from Seller, deliver to Seller, at Seller's expense, the items specified therein.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable LawClosing Date, the Company shallSeller will, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror the Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other the Buyer Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments all its books and records relating to the Purchased Assets; (including Tax Returnsii) of permit the Company and its Subsidiaries Buyer to make such reasonable inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, ; (iiiii) furnish Acquiror and Merger Sub the Buyer, at the Buyer's expense, with such financial and operating data and other information in the Seller's possession with respect to the business, properties and personnel of Purchased Assets as the Company as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; (iiiiv) furnish promptly to Acquiror and Merger Sub the Buyer, at the Buyer's expense, a copy of each material report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) it with respect to the matters set forth on Section 6.03(aPurchased Assets with the SEC, MDTE, RIPUC, NHPUC, NRC or FERC; PROVIDED, HOWEVER, that (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Disclosure LetterPurchased Assets, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to (B) the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent Seller shall not be unreasonably withheld or delayed. Notwithstanding required to take any action which would constitute a waiver of the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege and (C) the Seller need not supply the Buyer with any information which the Seller is under a legal obligation not to supply. Notwithstanding anything in this Section 7.2 to the contrary, (i) the Seller will only furnish or attorney work product protectionprovide such access to personnel and medical records, computer or hard copy, as is required by law, and (ii) the Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in underneath the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoPurchased Assets.
(b) All information furnished to or obtained by Acquiror or Merger Sub the Buyer and the Buyer Representatives pursuant to this Section 6.03 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Proprietary Information" (as defined in the Confidentiality Agreement).
(c) For a period of seven (7) years after the Closing Date, the Seller and its representatives shall have reasonable access to all of the books and records of the Purchased Assets transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the ownership of the Purchased Assets prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by them pursuant to this Section 7.2(c). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such seven-year period, the Buyer shall, prior to such disposition, give the Seller a reasonable opportunity at the Seller's expense, to segregate and remove such books and records as the Seller may select.
Appears in 1 contract
Access to Information. (a) During Subject to Applicable Law, Buyer agrees that for a period of ten (10) years following the period from Closing Date, Buyer will afford promptly to Sellers and their authorized representatives reasonable access (including the date right to make copies at Sellers’ expense, as appropriate) at reasonable times during normal business hours and upon reasonable written notice to the books and records of this Agreement continuing until Buyer relating to the earlier Business, and Buyer’s employees and auditors, to the extent necessary to permit Sellers to determine any matter relating to Sellers’ rights and obligations hereunder; provided, that (i) Sellers shall not interfere unreasonably with the conduct of the valid termination business of this Agreement or the Effective Time, Buyer and (ii) any such review shall be subject to the requirements confidentiality provisions set forth in Section 13.1 below.
(b) In order to facilitate the resolution of applicable Lawany claims made by or against or incurred by Elan Parent, the Company shallSellers or any of their Affiliates or officers or directors in any Elan Companies Proceeding, and upon reasonable notice, Buyer shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized afford the officers, employeesemployees and authorized agents and representatives of Elan Parent, accountants, investment bankers, counsel and other Representatives Sellers or any of their Affiliates reasonable access (including the right to make copies at their own expense), during regular normal business hours upon reasonable notice) hours, to such employees, the offices, data centers and other facilities at reasonable times and to such booksproperties, Contracts, commitments books and records (including Tax Returns) of Buyer with respect to the Company Business and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants Products relating to provide access the period prior to their work papers and such other information as Acquiror or Merger Sub may reasonably requestClosing, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect reasonably make available to the businessofficers, properties employees and personnel authorized agents and representatives of Elan Parent, Sellers or any of their Affiliates the Company employees of Buyer whose assistance, testimony or presence is necessary to assist Elan Parent, Sellers or any of their Affiliates in evaluating any claims and/or in defending against or in prosecuting such claims, including the presence of such persons as Acquiror witnesses in hearings or Merger Sub may from time to time reasonably request, trials for such purposes and (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionElan Parent, or (B) would violate an existing confidentiality obligation to any Person Sellers or any Lawof their Affiliates is legally required to produce original documents included in the Acquired Assets for inspection in any Elan Companies Proceeding, reasonably cooperate with Elan Parent, Sellers or any of their Affiliates in making such original documents available for inspection by parties to such Elan Companies Proceeding; provided, however, that in the case foregoing shall not unreasonably interfere with the business operations of clause (A) and (B), the Company shallBuyer or any of its Affiliates or subsidiaries, and Sellers shall cause reimburse Buyer for its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information direct out-of-pocket costs and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoexpenses.
(bc) All information obtained by Acquiror or Merger Sub pursuant Buyer agrees to this Section 6.03 maintain all original Marketing and Pricing Data included in Acquired Assets for a period of ten (10) years after the Closing Date. After such ten-year period, before Buyer shall dispose of any such Marketing and Pricing Data, it shall provide to the Sellers at least ninety (90) calendar days prior written notice to such effect and the Sellers shall be subject given an opportunity, at their sole cost and expense, to the provisions remove and retain all or any part of the Confidentiality Agreementsuch Marketing and Pricing Data as Sellers may select.
Appears in 1 contract
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries to, : (i) give Acquiror Buyer and Merger Sub and their authorized officersits Representatives, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular normal business hours and upon reasonable notice) , reasonable access to such employeesall books, officesrecords, data centers plans, offices and other facilities and properties in the possession of Seller included in the Purchased Assets (it being understood that Seller shall have the right to have a Representative present at reasonable all times and to during any such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, access); (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information in the possession of Seller with respect to the business, properties and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iii) furnish promptly Buyer with all such other information in the possession of Seller and provide such other cooperation as shall be reasonably necessary to Acquiror and Merger Sub a copy of each reportenable Buyer, schedule and other document filed or received by at its request, to verify the Company or any of its Subsidiaries during such period pursuant to the requirements accuracy of the federal or state securities Laws representations and (iv) with respect to the matters set forth on Section 6.03(a) warranties of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation Seller contained in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawAgreement; provided, however, that in the case of clause (A) any such access or requests shall be conducted in such manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client or other privilege, and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretosupply if Seller so notifies Buyer.
(b) All information furnished to or obtained by Acquiror or Merger Sub Buyer and Buyer's Representatives pursuant to this Section 6.03 6.2 shall be subject to Proprietary Information and shall be kept confidential in accordance with the provisions terms of the Confidentiality Agreement. Nothing in this Section 6.2 is intended to or shall be deemed to amend, supplement or otherwise modify the obligations of Buyer, its Representatives or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(c) For a period of seven (7) years from and after the Closing Date, each Party and its Representatives shall have reasonable access during normal business hours to all of the books and records of the Purchased Assets in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the ownership, lease, maintenance or operation of the Purchased Assets or the Excluded Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or any out-of-pocket costs of the other Party with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period, such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at such other Party's cost and expense, to segregate and remove such books and records as such other Party may select. Buyer's right of examination and access pending the Closing with respect to environmental matters relating to the Purchased Assets shall in no event include physical testing of or collection of samples from the Site or the Purchased Assets.
(d) Buyer shall not, prior to the Closing Date, contact any customer, vendor, supplier of, or director, officer, partner, member or employee of, or any other Person having business dealings with, Seller or its Affiliates with respect to any aspect of the Purchased Assets or the transactions contemplated hereby or by any Additional Agreement, including any Governmental Authority, without the prior consent of Seller; provided, that Buyer may request from a Governmental Authority information which is publicly available. Notwithstanding the foregoing, Seller shall work with Buyer to prepare statements that Buyer or Seller may provide in response to inquiries from any such Person having business dealings with Seller or its Affiliates, with respect to the Purchased Assets or transactions contemplated hereby or by any Additional Agreement. Except as otherwise provided herein, prior to Closing, Buyer shall not investigate or inquire as to any matter with any Governmental Authority having jurisdiction over any aspect of the Purchased Assets, unless and until the written consent of Seller (not to be unreasonably withheld or delayed) to the making of such investigation or inquiry has been received by Buyer and after consultation with Seller as to the scope and manner of the investigation or inquiry.
(e) All communications and consultations contemplated by Sections 6.2(a), 6.4 and 6.5 shall take place between the respective designated Representatives of Seller and Buyer, as may be designated from time to time by Seller and Buyer in the manner contemplated by Section 10.6. Seller's initial designated Representatives shall be Charl▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇ Buyer's initial designated Representatives shall be Lisa ▇. ▇▇▇▇▇▇▇.
Appears in 1 contract
Sources: Transmission Purchase and Sale Agreement (Potomac Electric Power Co)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, Seller will, subject to the requirements of applicable LawConfidentiality Agreement, the Company shall, during ordinary business hours and shall cause its Subsidiaries to, upon reasonable notice (i) give Acquiror Buyer and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives its representatives reasonable access (during regular business hours upon reasonable noticeA) to such employeesall books, officesrecords, data centers plants, offices and other facilities at reasonable times and to such booksproperties constituting the Auctioned Assets, Contracts, commitments and records (including Tax Returns) for the purpose of observing the operation by Seller of the Company Auctioned Assets and its Subsidiaries (B) to the Auctioned Assets that are not located at the Generating Plants or Gas Turbines for the purpose of preparing to store spare parts after the Closing, (ii) permit Buyer to make such reasonable inspections thereof as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub Buyer may reasonably request, (iiiii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information with respect to the business, properties and personnel of the Company Auctioned Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, (iiiiv) furnish promptly to Acquiror and Merger Sub Buyer upon request a copy of each material 51 44 report, schedule and or other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure LetterAuctioned Assets filed by Seller with, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv)received by Seller from, the Company and its Subsidiaries shall not agree to settle PSC or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any LawFERC; provided, however, that in the case of clause (A) any such activities shall be conducted in such a manner as not to interfere unreasonably with the operation of the Auctioned Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (B)C) Seller need not supply Buyer with (1) any information or access which Seller is under a legal obligation not to supply or (2) any information which Seller has previously supplied to Buyer. Notwithstanding anything in this Section 7.02 to the contrary, the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any (I) Seller will not be required consents to provide such accessinformation or access to any employee records other than Transferring Employee Records, inspections(II) Buyer shall not have the right to perform or conduct any environmental sampling or testing at, data in, on, around or other information underneath the Auctioned Assets and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilegeIII) as is necessary Seller shall not be required to provide such access, data access or other information with respect to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 any Retained Asset or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretoRetained Liabilities.
(b) All information obtained Unless otherwise agreed to in writing by Acquiror or Merger Sub pursuant Buyer, Seller shall, for a period commencing on the Closing Date and terminating three years after the Closing Date, keep confidential and shall cause its representatives to this Section 6.03 shall be subject to the provisions of keep confidential all Confidential Information (as defined in the Confidentiality Agreement) on the terms set forth in the Confidentiality Agreement. Except as contemplated by the following sentence, Seller shall not release any person from any confidentiality agreement now existing with respect solely to the Auctioned Assets or waive or amend any provision thereof. After the Closing Date, upon reasonable request of Buyer, Seller shall, to the maximum extent permitted by law and the applicable Bidder Confidentiality Agreement (as defined below), appoint Buyer to be Seller's representative and agent in respect of confidential information relating to the Auctioned Assets under the confidentiality agreements ("Bidder Confidentiality Agreements") between Seller and prospective purchasers of certain generation assets of Seller of which the Auctioned Assets form part.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Orion Power Holdings Inc)
Access to Information. (a) During the period from Between the date of this Agreement continuing until and the earlier of the valid termination of this Agreement or the Effective TimeClosing Date, subject to the requirements of applicable Law, the Company Seller shall, and shall cause its Subsidiaries to, : (i) give Acquiror Buyer and Merger Sub and their authorized officersits Representatives, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular normal business hours and upon reasonable notice) , reasonable access to such employeesall books, officesrecords, data centers plans, offices and other facilities and properties in the possession of Seller included in the Purchased Assets (it being understood that Seller shall have the right to have a Representative present at reasonable all times and to during any such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, access); (ii) furnish Acquiror and Merger Sub Buyer with such financial and operating data and other information in the possession of Seller with respect to the business, properties and personnel of the Company Purchased Assets as Acquiror or Merger Sub Buyer may from time to time reasonably request, ; and (iii) furnish promptly Buyer with all such other information in the possession of Seller as shall be reasonably necessary to Acquiror and Merger Sub a copy of each reportenable Buyer, schedule and other document filed or received by at its request, to verify the Company or any of its Subsidiaries during such period pursuant to the requirements accuracy of the federal representations and warranties of Seller contained in this Agreement; provided, however, that (A) any such access or state securities Laws requests shall be conducted in such manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client or other privilege, (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply, and (ivD) Seller shall not be required to supply Buyer with any information with respect to the matters set forth on Section 6.03(a) Jointly Owned Stations to which Seller is not entitled pursuant to the terms of the Disclosure LetterJointly Owned Stations Operating Agreements. Notwithstanding anything herein to the contrary, consult prior to the Closing Date, Buyer shall not have the right to perform or conduct, or cause to be performed or conducted, any environmental sampling or testing at, in, on or underneath the Jointly Owned Stations.
(b) All information furnished to or obtained by Buyer and Buyer’s Representatives pursuant to this Section 6.1 shall be Proprietary Information and shall be kept confidential in accordance with Acquiror the terms of the Confidentiality Agreement. Nothing in this Section 6.1 is intended to or shall be deemed to amend, supplement or otherwise modify the obligations of Buyer, its Representatives or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms. Buyer shall be subject to and bound by all obligations of Duquesne Power, LP under the Confidentiality Agreement as though Buyer were a party thereto.
(c) For a period of seven (7) years from and after the Closing Date, each Party and its Representatives shall have reasonable access during normal business hours to all of the books and records of the Purchased Assets in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the ownership, lease, maintenance or operation of the Purchased Assets or the Excluded Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.1(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period, such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at such other Party’s cost and expense, to segregate and remove such books and records as such other Party may select.
(d) Buyer shall not, prior to the Closing Date, contact any customer, vendor, supplier of, or director, officer, partner, member or employee of (other than as contemplated by Section 6.10(c)), or any other Person having business dealings with, Seller or its Affiliates with respect to any decisions aspect of a legal nature related thereto and prior to the Company Purchased Assets or its Subsidiaries responding to the transactions contemplated hereby or by any request or submitting Additional Agreement, including any documentation in response theretoGovernmental Authority, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of AcquirorSeller, which consent shall not be unreasonably withheld or delayed. Notwithstanding Other than the NJBPU and PaPUC, Seller shall not, prior to the Closing Date, contact any director, officer, partner, member or employee of (other than as contemplated by Section 6.10(c)), or any other Person having business dealings with, Buyer or its Affiliates with respect to any aspect of the transactions contemplated hereby or by any Additional Agreement, including any Governmental Authority, without the prior written consent of Buyer, which shall not be unreasonably withheld or delayed. Without limiting the generality of the foregoing, the Company and its Subsidiaries (i) prior to Closing, Buyer shall not investigate or inquire as to any matter with any Governmental Authority having jurisdiction over any aspect of the Purchased Assets, unless and until the written consent of Seller (not to be obligated to provide such access, inspections, data unreasonably withheld or other information delayed) to the extent that making of such investigation or inquiry has been received by Buyer and after consultation with Seller as to do so the scope and manner of the investigation or inquiry, and (Aii) could reasonably Buyer’s right of examination and access pending the Closing with respect to environmental matters relating to the Purchased Assets shall be expected limited to jeopardize an attorney-client privilege examination of existing records and interviews with personnel as authorized in writing by Seller, and in no event shall include physical testing of or attorney work product protection, collection of samples from the Real Property or (B) would violate an existing confidentiality obligation to the Purchased Assets or contacting staff or officials of any Person Governmental Authority or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related theretothird party.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Duquesne Light Holdings Inc)
Access to Information. (a) During From the period from the date of this Agreement continuing Effective Date until the Closing (or the earlier of the valid termination of this Agreement or the Effective Timepursuant to Article X), subject Sellers (in their discretion) will provide Buyer and its authorized Advisors with reasonable access and upon reasonable advance notice and during regular business hours to the requirements books and records of Sellers, in order for Buyer and its authorized Advisors to access such information regarding the Acquired Assets and the Assumed Liabilities as is reasonably necessary in order to consummate the transactions contemplated by this Agreement (including for integration purposes); provided that (i) such access does not unreasonably interfere with the normal operations of any Seller, (ii) such access will occur in such a manner as Sellers reasonably determine to be appropriate to protect the confidentiality of the transactions contemplated by this Agreement, (iii) all requests for access will be directed to Lazard or such other Person(s) as Sellers may designate in writing from time to time and (iv) nothing herein will require Sellers to provide access to, or to disclose any information to, Buyer if such access or disclosure (A) would cause significant competitive harm to any Seller if the transactions contemplated by this Agreement are not consummated, (B) would require any Seller to disclose any financial or proprietary information of or regarding the Affiliates of any Seller or otherwise disclose information regarding the Affiliates of any Seller that such Seller deems to be commercially sensitive, (C) would waive any legal privilege or (D) would be in violation of applicable LawLaws; provided that Sellers shall use reasonable best efforts to provide the Buyer, to the Company shallextent possible, with access to the relevant information in a manner that would not reasonably be expected to violate the foregoing clauses (A) through (D).
(b) The information provided pursuant to this Section 8.2 will be used solely for the purpose of consummating the transactions contemplated hereby (including for integration planning), and will be governed by all the terms and conditions of the Confidentiality Agreement, which Confidentiality Agreement shall not terminate upon the execution of this Agreement notwithstanding anything to the contrary therein. Buyer will, and will cause its Advisors to, abide by the terms of the Confidentiality Agreement with respect to such access and any information furnished to Buyer or any of its Advisors. Sellers make no representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 8.2, and Buyer may not rely on the accuracy of any such information, in each case, other than the Express Representations.
(c) Sellers shall not, and shall cause its Subsidiaries their Affiliates and Advisors not to, for a period of two years after the Closing, directly or indirectly, without Buyer’s prior written consent, use for any purpose (except as otherwise specifically permitted in this Agreement) or disclose to any third party (other than each other and their respective Advisors) any confidential or proprietary information concerning the Business, the Acquired Assets or the Assumed Liabilities (including such information as may be disclosed to Sellers pursuant to the exercise of its rights to access information following the Closing as set forth herein); provided that the foregoing restriction shall not (i) give Acquiror apply to any information (A) generally available to, or known by, the public (other than as a result of disclosure in violation of this Agreement), (B) independently developed by Sellers or any of their respective Affiliates following the Closing without any reference to confidential or proprietary information concerning the Business, or (C) becomes available to Sellers or any of their respective Representatives from a third party if such source is not known by Sellers at the time of the disclosure to be bound by a confidentiality agreement with, or other known contractual or legal obligation of confidentiality to, Buyer with respect to such information, or (ii) prohibit any disclosure (A) required by applicable Law so long as, to the extent practicable and Merger Sub legally permissible, the applicable Seller provides Buyer with reasonable prior notice of such disclosure and a reasonable opportunity (at Buyer’s sole cost and expense) to contest such disclosure, (B) made in connection with the enforcement of any right or remedy relating to any of the Transaction Documents or the transactions contemplated thereby, (C) necessary to permit Sellers or any of their respective Affiliates to comply with their financial reporting, accounting or auditing obligations with respect to any period ending before or including the Closing Date with respect to the Business, the Excluded Assets or the Excluded Liabilities, or (D) necessary in connection with the administration of the Bankruptcy Cases, the winding down of Sellers’ estate, the payment of any Taxes or the filing of any Tax Returns or the recording of any claims in connection therewith.
(d) From and after the Closing for a period of two years following the Closing Date (or, if later, the closing of the Bankruptcy Cases), Buyer will provide Sellers and their authorized Advisors with reasonable access, during normal business hours, and upon reasonable advance notice, to the books and records, including work papers, schedules, memoranda, Tax Returns, Tax schedules, Tax rulings, and other documents (for the purpose of examining and copying) relating to the Acquired Assets, the Excluded Assets, the Assumed Liabilities or the Excluded Liabilities with respect to periods or occurrences prior to or including the Closing Date, and reasonable access, during normal business hours, and upon reasonable advance notice, to employees, officers, employeesAdvisors, accountants, investment bankersoffices and properties of Buyer, counsel and other Representatives reasonable access in each case, solely to the extent (during regular business hours upon reasonable noticei) necessary to such employeespermit Sellers or any of their respective Affiliates to comply with their financial reporting, officesaccounting or auditing obligations with respect to any period ending before or including the Closing Date with respect to the Business, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of or the Company and its Subsidiaries as Acquiror Excluded Assets or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably requestExcluded Liabilities, (ii) furnish Acquiror and Merger Sub as reasonably necessary for Sellers to comply with such financial and operating data and other information regulatory requirements under applicable Law or otherwise in connection with respect to the businesstax, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, regulatory matters or (iii) furnish promptly in connection with the administration of the Bankruptcy Cases, the winding down of Sellers’ estate, the payment of any Taxes or the recording of any claims in connection therewith. Unless otherwise consented to Acquiror in writing by ▇▇▇▇▇▇▇, ▇▇▇▇▇ will use commercially reasonable efforts not to, for a period of three years following the Closing Date, destroy, alter or otherwise dispose of any of such books and Merger Sub a records without first offering to surrender to Sellers such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose of. Notwithstanding anything to the contrary in this Agreement, no Seller (or any Advisor thereof) shall be entitled to any Tax Return (or copy thereof) of each report, schedule and other document filed or received by the Company Buyer or any of its Subsidiaries during such period pursuant Affiliates.
(e) Except in the ordinary course of business unrelated to the requirements Business or the transactions contemplated hereby, Buyer will not and will cause all its Advisors and Affiliates not to contact any officer, manager, director, employee, customer, supplier, lessee, lessor, lender, licensee, licensor, distributor, noteholder or other material business relation of the federal or state securities Laws and (iv) with respect any Seller prior to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror Closing with respect to any decisions of a legal nature related thereto and prior to Seller, its business or the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to transactions contemplated by this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters Agreement without the prior written consent of Acquiror, Sellers for each such contact (which consent shall not be unreasonably withheld withheld, conditioned or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protection, or (B) would violate an existing confidentiality obligation to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify any representation, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror and Merger Sub related thereto.
(b) All information obtained by Acquiror or Merger Sub pursuant to this Section 6.03 shall be subject to the provisions of the Confidentiality Agreement.
Appears in 1 contract
Access to Information. (a) During GrassRoots shall afford to Newport and shall cause its independent accountants to afford to Newport, and its accountants, counsel and other representatives, reasonable access during normal business hours during the period from prior to the date of Closing to all information concerning GrassRoots, as Newport may reasonably request, provided that GrassRoots shall not be required to disclose any information which it is legally required to keep confidential. Newport will not use such information for purposes other than this Agreement continuing and will otherwise hold such information in confidence (and Newport will cause its consultants and advisors also to hold such information in confidence) until such time as such information otherwise becomes publicly available, and in the earlier event of the valid termination of this Agreement or the Effective Time, subject to the requirements of applicable Law, the Company shall, and for any reason Newport shall cause its Subsidiaries to, (i) give Acquiror and Merger Sub and their authorized officers, employees, accountants, investment bankers, counsel and other Representatives reasonable access (during regular business hours upon reasonable notice) to such employees, offices, data centers and other facilities at reasonable times and to such books, Contracts, commitments and records (including Tax Returns) of the Company and its Subsidiaries as Acquiror or Merger Sub may reasonably request and instruct the Company’s (and its Subsidiaries’) independent public accountants to provide access to their work papers and such other information as Acquiror or Merger Sub may reasonably request, (ii) furnish Acquiror and Merger Sub with such financial and operating data and other information with respect to the business, properties and personnel of the Company as Acquiror or Merger Sub may from time to time reasonably request, (iii) furnish promptly to Acquiror and Merger Sub a copy of each report, schedule and other document filed or received by the Company or any of its Subsidiaries during such period pursuant to the requirements of the federal or state securities Laws and (iv) with respect to the matters set forth on Section 6.03(a) of the Disclosure Letter, consult with Acquiror with respect to any decisions of a legal nature related thereto and prior to the Company or its Subsidiaries responding to any request or submitting any documentation in response thereto, provide Acquiror a reasonable opportunity to review any such submission, response or related documentation and provide comments; provided that with respect to this clause (iv), the Company and its Subsidiaries shall not agree to settle or provide any remedy with regard to any such matters without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company and its Subsidiaries shall not be obligated to provide such access, inspections, data or other information to the extent that to do so (A) could reasonably be expected to jeopardize an attorney-client privilege or attorney work product protectionreturn, or (B) would violate an existing confidentiality obligation cause to any Person or any Law; provided, however, that in the case of clause (A) and (B), the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to obtain any required consents to provide such access, inspections, data or other information and take such other action (such as the redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside counsel to avoid the loss of attorney client privilege) as is necessary to provide such access, data or other information to Acquiror and Merger Sub in compliance with applicable Law, and otherwise the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to institute appropriate substitute disclosure arrangementsbe returned, to the extent practicable in the circumstances. No investigation pursuant to this Section 6.03 or by Acquiror or its Affiliates shall affect or be deemed to modify disclosing party all documents obtained from GrassRoots, and any representationcopies made of such documents, warranty, covenant or other agreement made by the Company in this Agreement or the conditions of Acquiror extracts and Merger Sub related theretocopies thereof.
(b) All information obtained by Acquiror or Merger Sub pursuant Newport shall afford to this Section 6.03 GrassRoots and shall be subject cause its independent accountants to afford to GrassRoots, and its accountants, counsel and other representatives, reasonable access during normal business hours during the period prior to the provisions Closing to all of Newport's properties, books, contracts, commitments and records and to the Confidentiality Agreementaudit work papers and other records of Newport's independent accountants. During such period, Newport shall use reasonable efforts to furnish promptly to GrassRoots such information concerning Newport as GrassRoots may reasonably request, provided that Newport shall not be required to disclose any information which it is legally required to keep confidential. GrassRoots will not use such information for purposes other than this Agreement and will otherwise hold such information in confidence (and GrassRoots will cause its respective consultants and advisors also to hold such information in confidence) until such time as such information otherwise becomes publicly available, and in the event of termination of this Agreement for any reason GrassRoots shall promptly return, or cause to be returned, to the disclosing party all documents obtained from Newport, and any copies made of such documents, extracts and copies thereof.
Appears in 1 contract