Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from the date hereof until the Closing Date or earlier termination of this Agreement, upon reasonable request, Seller shall afford Buyer and its Representatives reasonable access to the properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries and shall furnish Buyer with such financial, operating and other data and information, and access to all the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to provide access to or disclose any information to Buyer or its Representatives if (i) such access or disclosure is prohibited pursuant to the terms of a confidentiality agreement with a third party entered into prior to the date hereof, (ii) such access or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such information. (b) The information provided pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by 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. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information. (c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose of.
Appears in 1 contract
Sources: Stock Purchase Agreement (Armstrong Flooring, Inc.)
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier of the termination of this AgreementAgreement and the Closing Date, upon reasonable requestnotice, Seller the Company and the Sellers shall afford the Buyer and its Representatives reasonable access to the personnel (subject to Section 6.14) properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Company and the Business for any reasonable purpose related to this Agreement and the Transactions; provided, however, that any such access shall be conducted at the Buyer’s expense, during normal business hours, under the supervision of the Company’s or the Business’s personnel and in such a manner as not to unreasonably interfere with the normal operations of the Business and shall furnish Buyer be subject to any limitations resulting from any Public Health Measures; provided further, that with such financialrespect to any properties, operating and plants or other data and information, and access to all the officers, employees, accountants and other Representatives facilities of the Transferred SubsidiariesBusiness, any such access shall not include access for the purpose of conducting any real property assessments, environmental sampling analysis or other intrusive testing of any such properties, plants or other facilities without the prior written consent of the US Seller, except as Buyer may reasonably request in connection with be required under the transactions contemplated by this AgreementConnecticut Transfer Act. Notwithstanding anything to the contrary in this Agreement, Seller the Company and the Sellers shall not be required to provide access to or disclose any information to the Buyer or its Representatives if the Company or a Seller determines, in its sole discretion, that (i) such access would jeopardize any attorney-client or disclosure is prohibited pursuant to the terms of a confidentiality other legal privilege, (ii) such access would contravene any applicable Laws (including any Public Health Measures), fiduciary duty or binding agreement with a third party entered into prior to the date hereof, (iiiii) such access the information to be accessed is pertinent to any litigation or disclosure would violate applicable Lawother dispute or Action in which a Seller or any of its Affiliates, on the one hand, and the Buyer or any of its Affiliates, on the other hand, are adverse parties, (iv) the information to be accessed should not be disclosed due to its competitively sensitive nature upon determination of counsel, or (iiiv) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to be accessed relates to any consolidated, combined or unitary Tax Return filed by the extent doing so would not (in Sellers, the good faith belief Company or any of Seller after consultation with outside counsel) violate their Affiliates or any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such informationof their respective predecessor entities.
(b) The information provided pursuant In order to this Section 6.2 facilitate the resolution of any claims made against or incurred by the Sellers (as it relates to the Business), for a period of seven years after the Closing or, if shorter, the applicable period specified in the Buyer’s document retention policy, the Buyer shall (i) retain the books and records relating to the Business relating to periods prior to the Closing will be used solely for and (ii) afford the purpose of effecting the transactions contemplated hereby, and will be governed by the terms and conditions Representatives of the Confidentiality AgreementSellers reasonable access (including the right to make, which Confidentiality Agreement shall not terminate upon at the execution of this Agreement notwithstanding anything Seller’s expense, photocopies), subject to the contrary therein. Seller does not make any representation or warranty as to the accuracy of limitations resulting from any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable accessPublic Health Measures, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records; provided, including work papers, schedules, memoranda, and other documents (for that the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in notify the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to Sellers in writing by Seller, Buyer will not, for a period at least 30 days in advance of three (3) years following the Closing Date, destroy, alter or otherwise dispose of destroying any of such books and records without first offering prior to surrender the seventh anniversary of the Closing Date in order to Seller provide the Sellers the opportunity to copy such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose ofin accordance with this Section 6.2(b).
Appears in 1 contract
Sources: Transaction Agreement (Allegion PLC)
Covenants Regarding Information. (a) Subject to From the Bidding Procedures and applicable Law, from the date hereof Agreement Date until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestthe Company shall, Seller and shall cause the other Company Entities to, afford Buyer Parent and its Representatives reasonable access to the Representatives, properties, offices, plants call centers, sales centers and other facilities, books and records (including Tax books and records) of each of the Transferred Subsidiaries Company Entities, and shall cause each of the Company Entities to furnish Buyer Parent and its Representatives with such financial, operating and other data and informationinformation as Parent or its Representatives may reasonably request; provided, and however, that such access shall be conducted in such a manner so as not to all unreasonably interfere with the officers, employees, accountants and other Representatives normal operations of the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated by this AgreementCompany Entities. Notwithstanding anything the foregoing, any such access pursuant to the contrary in this Agreement, Seller Section 6.3(a) shall not include any environmental sampling or invasive environmental testing. None of the Company Entities shall be required to provide access to or to disclose any information to Buyer or if the Company determines, in its Representatives if (i) reasonable judgment, based on the advice of outside counsel, such access or disclosure is prohibited (i) would violate an obligation of confidentiality pursuant to any binding Contract to which any Company Entity is a party (so long as the terms Company shall have used commercially reasonable efforts to obtain the consent of a confidentiality agreement with a such third party entered into prior to the date hereof, such access or disclosure) or (ii) such access would result in the loss or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect waiver of any attorney-client privilege or other similar legal privilege immunity of any Company Entity or contravene any applicable Laws Law (except that, prior to withholding any such access or information pursuant to clause (i) or (ii), the Company shall notify Parent in writing of the nature of the information being withheld and use commercially reasonable efforts to take any actions as may reasonably be requested by Parent to implement alternate arrangements (including entering into customary confidentiality agreements or joint defense agreements, redacting parts of documents or preparing “Disclosure Limitations”); provided that the Parties shall reasonably cooperate clean” summaries of information) in seeking to find a way order to allow disclosure of such Parent or its Representatives access or information to the fullest extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such informationreasonably practicable).
(b) The From the Agreement Date until the Closing Date, Parent shall, and shall cause the other Parent Entities to, afford the Company and its Representatives reasonable access to the Representatives, properties, offices, call centers, sales centers and other facilities, books and records of each of the Parent Entities, and shall cause each of the Parent Entities to furnish the Company and its Representatives with such financial, operating and other data and information provided as the Company or its Representatives may reasonably request; provided, however, that such access shall be conducted in such a manner so as not to unreasonably interfere with the normal operations of the Parent Entities. Notwithstanding the foregoing, any such access pursuant to this Section 6.2 6.3(b) shall not include any environmental sampling or invasive environmental testing. None of the Parent Entities shall be required to provide access to or to disclose information if Parent determines, in its reasonable judgment, based on the advice of outside counsel, such access or disclosure (i) would violate an obligation of confidentiality pursuant to any binding Contract to which any Parent Entity is a party (so long as Parent shall have used commercially reasonable efforts to obtain the consent of such third party to such access or disclosure) or (ii) would result in the loss or waiver of any attorney-client privilege or similar legal immunity of any Parent Entity or contravene any applicable Law (except that, prior to Closing will be used solely for withholding any such access or information pursuant to clause (i) or (ii), Parent shall notify the purpose of effecting the transactions contemplated hereby, and will be governed by the terms and conditions Company in writing of the Confidentiality Agreementnature of the information being withheld and use commercially reasonable efforts to take any actions as may reasonably be requested by Parent to implement alternate arrangements (including entering into customary confidentiality agreements or joint defense agreements, which Confidentiality Agreement shall not terminate upon redacting parts of documents or preparing “clean” summaries of information) in order to allow the execution of this Agreement notwithstanding anything Company or its Representatives access or information to the contrary therein. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such informationfullest extent reasonably practicable).
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to On the Closing Date, for the purposes of (i) complying with the requirements of any Governmental AuthorityCompany will deliver or cause to be delivered to Parent all original agreements, including the Bankruptcy Courtdocuments, (ii) the closing of the Chapter 11 Case books and the wind down of Seller’s estate (including reconciliation of claims records and preparation of Tax Returns files stored on computer disks or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller tapes or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, storage medium in the reasonable, good faith judgment possession of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented Company relating to in writing by Seller, Buyer will not, for a period the business and operations of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose ofCompany Entities.
Appears in 1 contract
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestthe Company shall, and the Seller shall cause the Company to, afford the Buyer and its Representatives complete access (including for inspection) at all reasonable access times to (i) the properties, offices, plants and other facilities, books books, Contracts, and records (including Tax books and records) of the Transferred Subsidiaries Company, and (ii) all other information concerning the business, properties and personnel of the Company as the Buyer may reasonably request, and shall furnish the Buyer with and its Representatives complete and correct copies of the Company’s (x) internal financial statements, (y) Returns, Tax elections and any other records and workpapers relating to Taxes, that are in the possession of the Company or subject to the Company’s control, and (z) such other financial, operating and other data and informationinformation as the Buyer may reasonably request; provided, however, that the foregoing will not require the Company to provide any such access or disclose any information to the extent the provision of such access or such disclosure would contravene applicable Law or violate the terms of an agreement entered into prior to the date of this Agreement, including but not limited to that certain Nondisclosure Agreement between the Seller and access the Company, or as would be reasonably expected to all violate the officersattorney-client or other legal privilege of the Company (it being agreed that the parties will use their reasonable efforts to cause such information to be provided in a manner that does not cause such violation, employeesprohibition, accountants breach, or loss of privilege).
(b) Subject to compliance with applicable Law, from the date hereof until the earlier of the termination of this Agreement and other the Closing, the Seller will cause the Company to confer from time to time as requested by the Buyer with one or more Representatives of the Transferred SubsidiariesBuyer to discuss any changes or developments in the operational matters of the Company and the general status of the ongoing operations of the Company.
(c) No information or knowledge obtained in any investigation pursuant to this Section 5.2 will affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties hereto to consummate the sale of Shares.
(d) Each of the parties will hold, as Buyer may reasonably request and will cause its Representatives to hold, in confidence all documents and information furnished to it by or on behalf of another party to this Agreement in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to provide access to or disclose any information to Buyer or its Representatives if (i) such access or disclosure is prohibited Agreement pursuant to the terms of a confidentiality agreement with a third party entered into prior to the date hereof, (ii) such access or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such information.
(b) The information provided pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by the terms and conditions of the Confidentiality Agreement, which Confidentiality Agreement shall not terminate upon the execution and Section 5.7 of this Agreement notwithstanding anything to the contrary therein. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such informationAgreement.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose of.
Appears in 1 contract
Sources: Asset Purchase Agreement (Applied Micro Circuits Corp)
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestnotice, the Seller shall, and shall cause the Company and the other Applicable Entities to, afford the Buyer and its Representatives reasonable access to the properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Applicable Entities or otherwise relating to the Terminals Business for any reasonable purpose related to this Agreement and shall furnish Buyer with such financial, operating and other data and information, and access to all the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated hereby; provided, however, that any such access shall be conducted at the Buyer’s expense, during normal business hours, in compliance with the policies and health and safety requirements and any other reasonable conditions of the Company notified by this Agreementthe Seller to the Buyer in writing, under the supervision of the Company’s personnel and in such a manner as not unreasonably to interfere with the normal operations of the Company. Notwithstanding anything to the contrary in this AgreementAgreement (but subject to the proviso in this sentence), Seller the Company shall not be required to provide access to or disclose any information to the Buyer or its Representatives if the Company determines, in its reasonable discretion after consultation with counsel, that (i) such access would jeopardize any attorney-client or disclosure is prohibited pursuant to the terms of a confidentiality other legal privilege, (ii) such access would contravene any applicable Laws (including any applicable COVID-19 Measures), fiduciary duty or binding agreement with a third party entered into prior to the date hereof, (iiiii) the information to be accessed is pertinent to any litigation in which the Company or any of its Affiliates, on the one hand, and the Buyer or any of its Affiliates, on the other hand, are adverse parties, (iv) the information to be accessed cannot be disclosed without breaching an applicable confidentiality obligation, (v) the information to be accessed relates to any consolidated, combined or unitary Return filed by the Seller, the Company or any of their Affiliates or any of their respective predecessor entities or (vi) such access or disclosure would violate applicable Lawjeopardize the health and safety of any employee providing services to the Company; provided, or (iii) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided however, that the Parties Seller shall reasonably cooperate in seeking be obligated to find a way use commercially reasonable efforts to, and shall cause the Company and the Applicable Entities to allow disclosure of such use commercially reasonable efforts to, request and obtain consents and waivers necessary for the Buyer and its Representatives to gain access to records or information to the extent doing so would not (reasonably necessary for the Buyer to conduct its due diligence review of the Company, the BKEP Assets and the Terminals Business. Further, notwithstanding anything to the contrary in this Agreement, neither the good faith belief Buyer nor its Representatives shall conduct any invasive environmental sampling or tests of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Lawnature at the properties, or cause such privilege to be undermined with respect to such informationoffices, plants and other facilities of the Company without the prior written consent of the Company.
(b) The information provided pursuant In order to this Section 6.2 facilitate the resolution of any claims made against or incurred by the Seller (as it relates to the Company), for a period of seven years after the Closing or, if shorter, the applicable period specified in the Buyer’s document retention policy, the Buyer shall (i) retain the books and records relating to the Company relating to periods prior to the Closing will be used solely for and (ii) afford the purpose of effecting the transactions contemplated hereby, and will be governed by the terms and conditions Representatives of the Confidentiality AgreementSeller reasonable access (including the right to make, which Confidentiality Agreement shall not terminate upon at the execution of this Agreement notwithstanding anything to the contrary therein. Seller does not make any representation or warranty as to the accuracy of any informationSeller’s expense, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable accessphotocopies), during normal business hours, to such books and upon records; provided, however, that the Buyer shall use commercially reasonable efforts to notify the Seller in writing at least 30 days in advance noticeof destroying any such books and records prior to the seventh anniversary of the Closing Date in order to provide the Seller the opportunity to copy such books and records in accordance with this Section 6.2(b). Notwithstanding anything to the contrary in the foregoing, (A) in the event of a dispute, the furnishing of, or access to, records and information as contemplated by this Section 6.2(b) shall be subject to reasonable denials of access all applicable Laws relating to discovery and (B) the Company shall not be required to disclose any information if such disclosure would be reasonably likely to (x) jeopardize any attorney-client work product or delays other legal privilege or (y) contravene any applicable Laws, fiduciary duty or contract entered into prior to the extent any date hereof (provided that in each case the Seller shall, and shall cause the Company and other Applicable Entities to, use its commercially reasonable efforts to provide such access would unreasonably interfere with information if requested by the operations of Buyer or Buyer).
(c) As promptly as reasonably practicable following the business of Closing, but in no event later than 90 days following the Transferred SubsidiariesClosing Date, to the Seller shall cause all books and records, including work papersoriginal books and records, schedulesrelating to the Terminals Business to be delivered to the Buyer; provided that, memoranda, and other documents (for the purpose of examining and copyingi) of the Transferred Subsidiaries with respect to periods or occurrences prior the transfer of physical books and records to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering shall be transferred to surrender a location designated reasonably in advance by the Buyer and shall be transferred at the sole cost and expense of the Seller, and (ii) with respect to the transfer of electronic books and records to the Buyer, the Seller shall cause such records to be delivered in a readable format and in a format that reasonably allows the Buyer to use such records in a manner that complies with applicable Laws. To the extent that the Seller retains copies of any such books and records or records, the Seller shall provide the Buyer with an itemized list of any portion thereof that Buyer may intend to destroy, alter or dispose ofand all retained copies.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Blueknight Energy Partners, L.P.)
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestnotice, Seller the Company shall afford Buyer Acquiror and its Representatives reasonable access to the properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Company; provided, however, that any such access shall be conducted at Acquiror’s expense, during normal business hours, under the supervision of the Company’s personnel and in such a manner as not unreasonably to interfere with the normal operations of the Company, and shall furnish Buyer be subject to any limitations resulting from any Public Health Measures; provided further, that with such financialrespect to any properties, operating and plants or other data and information, and access to all the officers, employees, accountants and other Representatives facilities of the Transferred SubsidiariesCompany, as Buyer may reasonably request in connection with any such access shall not include access for the transactions contemplated by this Agreementpurpose of conducting any real property assessments, environmental analysis or other intrusive testing of any such properties, plants or other facilities; provided, further, that, for the avoidance of doubt, Acquiror shall be permitted to conduct Phase I Environmental Site Assessments, Limited Environmental Compliance Reviews or similar non-invasive environmental assessments (any such assessment or review actually performed, the “Signing Phase I”). Notwithstanding anything to the contrary in this Agreement, Seller the Company shall not be required to provide access to or disclose any information to Buyer Acquiror or its Representatives if the Company determines, in its reasonable discretion after considering reasonable mitigation methods, that (i) such access would jeopardize any attorney-client or disclosure is prohibited pursuant to the terms other legal privilege, (ii) such access would contravene any applicable Law, injunction, decree or order of a any Governmental Authority (including any Public Health Measures), fiduciary duty, confidentiality obligation or binding agreement with a third party entered into prior to the date hereof, (iiiii) such access the information to be accessed is pertinent to any litigation in which the Company or disclosure would violate applicable Lawany of its Affiliates, on the one hand, and Acquiror or any of its Affiliates, on the other hand, are adverse parties, (iv) the information to be accessed should not be disclosed due to its competitively sensitive nature, (v) the information to be accessed relates to the Company’s entry into or conducting of a sale process prior to the execution of this Agreement, including any information related to proposals from other Persons relating to any other potential transaction with the Company or (iiivi) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to be accessed relates to any consolidated, combined or unitary Tax Return filed by the extent doing Company or any of its Affiliates or any of their respective predecessor entities; provided, that, in each case, the Company shall give Acquiror reasonable notice that it has so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to withheld such information.
(b) The . All requests for information provided made pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will 5.4 shall be governed by 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. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose of.
Appears in 1 contract
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestthe Seller shall, Seller and shall cause the Company and its Subsidiaries to, afford the Buyer and its Representatives reasonable access (including for inspection and copying) at all reasonable times and upon reasonable notice to the individuals identified in the definition of the Seller’s “knowledge” set forth in Article I and the properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Company and each of its Subsidiaries, and shall furnish the Buyer with such financial, operating and other data and information, and access to all information that is available in the officers, employees, accountants and other Representatives ordinary course of business consistent with past practice as the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreementrequest; provided, Seller shall not be required to provide access to or disclose any information to Buyer or its Representatives if however, that (i) such access does not unreasonably interfere with the normal operations of the Seller, the Company or disclosure is prohibited pursuant to the terms of a confidentiality agreement with a third party entered into prior to the date hereofits Subsidiaries, (ii) such access or disclosure would violate applicable Lawshall occur in such a manner as the Company reasonably determines to be appropriate to protect the confidentiality of the transactions contemplated by this Agreement and all other confidential information, or (iii) all requests for any such access under this Section 5.2(a) shall be directed to ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such other Person as the Seller may designate in writing from time to time (collectively, the “Designated Contact”) and (iv) nothing herein shall require the Company to provide access to, or to disclose any information to, the Buyer or any of its representatives if such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (disclosure, in the good faith reasonable belief of Seller after consultation the Seller, (A) would cause significant competitive harm to the Company or any of its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (B) would waive or otherwise adversely affect any legal privilege or (C) would be in violation of applicable Laws of any Governmental Authority, the provisions of any Contract to which the Company or any of its Subsidiaries is a party or the Company’s or any of its Subsidiaries’ practices related to privacy, including the protection of personally identifiable information. The Buyer shall have no right to perform any environmental sampling or assessments without the prior written consent of the Seller. Without the approval of the Designated Contacts, which approval shall not be unreasonably withheld, conditioned or delayed, the Buyer is not authorized to and shall not (and shall cause its Representatives and Affiliates not to) contact any Representative, customer, supplier, employee or other material business relation of the Company or any of its Subsidiaries in connection with outside counsel) violate any such confidentiality agreement or applicable Law, relating to the business of the Company and its Subsidiaries or cause such privilege the transactions contemplated by this Agreement prior to be undermined with respect to such informationthe Closing.
(b) The information provided pursuant From the date hereof until the Closing Date, the Seller shall deliver to this Section 6.2 prior to Closing will be used solely for the purpose Buyer monthly consolidated balance sheets and the related consolidated statements of effecting the transactions contemplated hereby, income and will be governed by the terms and conditions changes in cash flows of the Confidentiality Agreement, which Confidentiality Agreement shall not terminate upon Seller and its Subsidiaries prepared in the execution ordinary course of this Agreement notwithstanding anything to business within thirty (30) days of the contrary therein. Seller does not make any representation or warranty as to the accuracy end of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such informationeach calendar month.
(c) From On the Closing Date, the Seller will deliver or cause to be delivered to the Buyer all original (and after the Closingany and all copies of) agreements, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hoursdocuments, and upon reasonable advance noticebooks and records and all computer disks, subject to reasonable denials of access records or delays to the extent tapes or any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiariesother storage medium on which agreements, to the documents, books and records, including work papers, schedules, memoranda, files and other documents (for information relating to the purpose of examining business and copying) operations of the Transferred Company and its Subsidiaries with respect to periods are stored, in each case, that are in the possession or occurrences prior to under the control of the Seller. Following the Closing Date, for the purposes of (i) complying with the requirements of Seller shall not retain in its possession or under its control, in any Governmental Authorityform, including the Bankruptcy Courtany agreements, (ii) the closing of the Chapter 11 Case documents, or books and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns records, or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller computer disks, records or tapes or any other successors storage medium that contains copies of Sellerany agreements, documents, books and records, files and other information relating to the business and operations of the Company and its Subsidiaries (including any personal or other information stored on any media by any employees of the Company or any of its Subsidiaries), including any of the foregoing that is stored on any server or other storage media maintained by a third party on behalf of the Seller (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide including any such access that would“cloud” storage platform). If, in notwithstanding the reasonableforegoing, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years Seller discovers following the Closing DateDate that it is in possession of or has under its control any agreements, destroydocuments, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that computer disks, records or tapes or any other storage medium on which any agreements, documents, books and records, files and other information relating to the business and operations of the Company and its Subsidiaries are stored, the Seller shall (x) deliver to the Buyer any such information which may intend not have been previously delivered pursuant to destroy, alter the first sentence of this Section 5.2(c) and (y) thereafter permanently delete and erase all such information (including all copies thereof) in its possession or dispose ofunder its control as soon as reasonably practicable.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Matson, Inc.)
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestnotice, the Seller shall, and shall cause the Company to, (i) afford the Buyer and its Representatives reasonable access to the Representatives, properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Company and shall (ii) furnish the Buyer and its Representatives with such financial, operating and other data and informationinformation as the Buyer or its Representatives may reasonably request; provided, and further, that any such access to all or furnishing of information shall be conducted at the officersBuyer’s expense, employeesduring normal business hours, accountants and other Representatives under the supervision of the Transferred Subsidiaries, Company’s personnel and in such a manner as Buyer may reasonably request in connection to not unreasonably interfere with the transactions contemplated by this Agreementnormal operations of the Company. Notwithstanding anything to the contrary in this Agreement, Seller the Company shall not be required to (i) provide access to personnel records of the Company relating to individual performance or evaluation records, medical histories or other information, which in the Company’s good faith determination is sensitive or the disclosure of which could subject the Company or any of its Affiliates to risk of Liability or (ii) disclose any information to the Buyer or its Representatives if the Company determines, in its reasonable discretion, that (iA) such access disclosure would jeopardize any attorney-client or other legal privilege, (B) such disclosure is prohibited pursuant to the terms of a confidentiality would contravene any applicable Laws, fiduciary duty or binding agreement with a third party entered into prior to the date hereof, (iiC) such access information is pertinent to any litigation in which the Company or disclosure would violate applicable Lawany of its Affiliates, on the one hand, and the Buyer or any of its Affiliates, on the other hand, are adverse parties or (iiiD) such access information is not related to the Company and is in any consolidated, combined or disclosure would adversely affect unitary Tax Return filed by the Seller, the Company or any attorney-client of their Affiliates or any of their respective predecessor entities, nor shall the Buyer be entitled to conduct any invasive sampling or testing of any soil, gas, air, surface water, groundwater, building materials or other legal privilege or contravene any environmental media, including the conduct of a Phase II environmental site assessment. If the Company determines in its reasonable discretion that specific information is competitively sensitive in nature, (Y) the Company shall make such information available only to a ‘clean team’ of Representatives of the Buyer (such Representatives to be agreed by the Buyer and the Seller), and (Z) the Seller and the Buyer shall cooperate to take necessary actions to avoid exposure under applicable antitrust Laws (in connection with the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such information.
(b) The information provided pursuant In order to this Section 6.2 facilitate the resolution of any claims made against or incurred by the Seller or any of its Affiliates (as they relate to the Company), for a period of seven years after the Closing Date or, if shorter, the applicable period specified in the Company’s document retention policy, the Company shall (i) retain the books and records relating to the Company relating to periods prior to the Closing will be used solely for Date and (ii) afford the purpose of effecting the transactions contemplated hereby, and will be governed by the terms and conditions Representatives of the Confidentiality Agreement, which Confidentiality Agreement shall not terminate upon the execution of this Agreement notwithstanding anything to the contrary therein. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its RepresentativesAffiliates reasonable access (including the right to make, with reasonable accessat the Seller’s expense, photocopies), during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records; provided, including work papersfurther, schedules, memoranda, that the Company shall notify the Seller in writing at least 30 days in advance of destroying any such books and other documents (for records prior to the purpose of examining and copying) seventh anniversary of the Transferred Subsidiaries Closing Date in order to provide the Seller the opportunity to copy such books and records in accordance with respect to periods or occurrences prior to this Section 6.2(b). Notwithstanding the foregoing, after the Closing Date, for neither the purposes of (i) complying with Buyer nor the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not Company will be obligated to provide the Seller with access to any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or personnel files pursuant to this Section 6.2(b) where such access would violate any portion thereof that Buyer may intend to destroy, alter or dispose ofLaw.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Williams Partners L.P.)
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestnotice, the Company and its Subsidiaries, and Seller shall cause the Company and its Subsidiaries to, shall afford Buyer and its Representatives reasonable access to the properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Company and its Subsidiaries for any reasonable purpose related to this Agreement and shall furnish Buyer with such financial, operating and other data and information, and access to all the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated by this Agreementhereby; provided, however, that any such access shall be conducted at Buyer’s expense, during normal business hours, under the supervision of the Company’s personnel and in such a manner as not unreasonably to interfere with the normal operations of the Company and its Subsidiaries. Notwithstanding anything to the contrary in this Agreement, Seller neither the Company nor its Subsidiaries shall not be required to provide access to or disclose any information to Buyer or its Representatives if the Company determines, in its sole discretion, that (i) such access or disclosure is prohibited pursuant to the terms of a confidentiality agreement with a third party entered into prior to the date hereof, (ii) such access or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect jeopardize any attorney-client or other legal privilege or privilege, (ii) such access would contravene any applicable Laws Laws, or (iii) the “Disclosure Limitations”)information to be accessed is pertinent to any litigation in which the Company or any of its Affiliates, on the one hand, and Buyer or any of its Affiliates, on the other hand, are adverse parties, (iv) the information to be accessed should not be disclosed due to its competitively sensitive nature; provided that or (v) the Parties information to be accessed relates to any consolidated, combined or unitary Return filed by Seller, the Company or any of their Affiliates or any of their respective predecessor entities; provided, that, if the Company withholds any such information, then the Company shall provide a reasonably cooperate in seeking detailed written description of the reasons for withholding such information and shall use its commercially reasonable efforts to find a way disclose to allow disclosure Buyer as much of such information to the extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such informationas reasonably possible.
(b) The information provided No investigation pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by 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. Seller does not make affect any representation or warranty as in this Agreement of any party hereto or any condition to the accuracy obligations of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such informationparties hereto.
(c) From In order to facilitate the resolution of any claims made against or incurred by Seller (as it relates to the Company and its Subsidiaries), for a period of four (4) years after the Closing, until Buyer shall (i) retain the closing of books and records relating to the Chapter 11 Case, Buyer will provide Seller Company and its RepresentativesSubsidiaries relating to periods prior to the Closing and (ii) afford the Representatives of Seller reasonable access (including the right to make, with reasonable accessat Seller’s expense, photocopies), during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering solely to surrender the extent necessary to Seller facilitate the resolution of any such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose ofclaims.
Appears in 1 contract
Sources: Merger Agreement (TopBuild Corp)
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestnotice, Seller the Company shall afford Buyer the Buyer, the Acquisition Sub and its Representatives their respective officers, employees, agents, accountants, advisors, bankers, financing sources and other representatives (collectively, "Representatives") reasonable access to the Representatives, properties, offices, plants offices and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Company, and the Company shall furnish the Buyer or the Acquisition Sub with such financial, operating and other data and information, and access to all information as the officers, employees, accountants and other Representatives of Buyer or the Transferred Subsidiaries, as Buyer Acquisition Sub may reasonably request (including the right to make photocopies of all documents at the Buyer's or the Acquisition Sub's expense); provided, however, that any such access or furnishing of information shall be conducted at the Buyer's or the Acquisition Sub's expense, during normal business hours, under the supervision of the Seller's or the Company's personnel and in connection such a manner as not unreasonably to interfere with the transactions contemplated by this Agreementnormal operations of the Company. Notwithstanding anything to the contrary in this Agreement, Seller the Company shall not be required to provide access to or disclose any information to Buyer the Buyer, the Acquisition Sub or its their respective Representatives or provide the Buyer, the Acquisition Sub or their respective Representatives access to the Company's properties, offices and other facilities if such disclosure or access would, in the Company's reasonable discretion after consultation with legal counsel, (i) such access jeopardize any attorney-client or disclosure is prohibited pursuant to the terms of a confidentiality other legal privilege, (ii) contravene any applicable Laws, fiduciary duty or binding agreement with a third party entered into prior to the date hereof, provided that, if reasonably requested by the Buyer or the Acquisition Sub and at the Buyer's or the Acquisition Sub's expense, the Company and the Seller shall use their commercially reasonable efforts to obtain such consents and waivers (iias applicable) as are necessary or appropriate to provide any such access or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such restricted information to the extent doing so would not (in Buyer, the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such informationAcquisition Sub and their respective Representatives.
(b) The information provided pursuant In order to this Section 6.2 facilitate the resolution of any claims made against or incurred by the Seller (as it relates to the Company), for a period of seven years after the Closing or, if shorter, the applicable period specified in the Buyer's document retention policy, the Buyer shall (i) retain the books and records relating to the Company relating to periods prior to the Closing will be used solely for and (ii) afford the purpose of effecting the transactions contemplated hereby, and will be governed by the terms and conditions Representatives of the Confidentiality Agreement, which Confidentiality Agreement shall not terminate upon Seller reasonable access (including the execution of this Agreement notwithstanding anything right to make photocopies at the contrary therein. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable accessSeller's expense), during normal business hours, to such books and upon reasonable records; provided, however, that the Buyer shall notify the Seller in writing at least thirty (30) calendar days in advance notice, subject to reasonable denials of access or delays destroying any such books and records prior to the extent seventh anniversary of the Closing Date in order to provide the Seller the opportunity to take possession of or copy such books and records in accordance with this Section 6.2(b).
(c) In order to facilitate the resolution of any such access would unreasonably interfere with claims made against or incurred by the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will notCompany, for a period of three (3) seven years following after the Closing Dateor, destroyif shorter, alter or the applicable period specified in the Seller's document retention policy, the Seller shall (i) retain the books and records relating to the Company relating to periods prior to the Closing which shall not otherwise dispose have been delivered to the Buyer and (ii) upon reasonable notice, afford the Representatives of the Buyer reasonable access (including the right to make photocopies at the Buyer's expense), during normal business hours, to such books and records; provided, however, that the Seller shall notify the Buyer in writing at least thirty (30) calendar days in advance of destroying any of such books and records without first offering prior to surrender the seventh anniversary of the Closing Date in order to Seller provide the Buyer the opportunity to take possession of or copy such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose ofin accordance with this Section 6.2(c).
Appears in 1 contract
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestnotice, Seller TreeHouse shall cause the other Business Entities to (i) afford the Buyer and its Representatives reasonable access to the properties, offices, plants and other facilities, books and records of the Business and the Group Companies for any reasonable purpose related to this Agreement and the transactions contemplated hereby and (ii) afford the Buyer and its Representatives reasonable access to, and an opportunity to participate in discussions with, any Person (including Tax books and recordsany third party vendor) of the Transferred Subsidiaries and shall furnish Buyer with such financial, operating and other data and information, and access contemplated to all the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request provide transitional services in connection with the transactions contemplated by this Agreementthe Transition Services Agreement (with respect to which TreeHouse shall consider in good faith any comments or feedback from the Buyer or its Representatives); provided, however, that any such access shall be conducted at the Buyer’s sole risk, cost and expense, during normal business hours, under the supervision of the Business Entities’ personnel and in such a manner as not unreasonably to interfere with the normal operations of the Business Entities or any tenants thereof, and shall be subject to any limitations resulting from any Public Health Measures; provided, further, that with respect to any properties, plants or other facilities of the Business or the Group Companies, any such access shall not include access for the purpose of conducting any Phase II environmental sampling or other intrusive testing of any such properties, plants or other facilities without the prior written consent of TreeHouse (which consent shall not be unreasonably withheld, conditioned or delayed), and shall take place upon at least two Business Days’ prior notice to TreeHouse, shall comply with all of TreeHouse’s and/or the applicable Business Entity’s requirements (including the requirements of any of their contractors performing work at the applicable properties, plants or other facilities) regarding entry upon the such properties, plants or facilities, to the extent previously provided to the Buyer and its Representatives, and shall not unreasonably interrupt or interfere with any construction, renovation, maintenance or other work being performed at any such property, plant or facility. Notwithstanding anything to the contrary in this Agreement, Seller no Business Entity shall not be required to provide access to or disclose any information to the Buyer or its Representatives if TreeHouse determines, in its reasonable discretion, that (i) such access would jeopardize any attorney-client or disclosure is prohibited pursuant to the terms of a confidentiality agreement with a third party other legal privilege, (ii) such access would contravene any applicable Laws (including any Public Health Measures), fiduciary duty or binding Contract entered into prior to the date hereof, (iii) the information to be accessed is pertinent to any litigation in which a Business Entity or any of its Affiliates, on the one hand, and the Buyer or any of its Affiliates or the Buyer Related Parties, on the other hand, are adverse parties, (iv) the information to be accessed does not relate primarily to the Business or (v) the information to be accessed relates to any consolidated, combined or unitary Return filed by TreeHouse, the Group Companies or any of their Affiliates or any of their respective predecessor entities; provided that, with respect to clauses (i) and (ii), TreeHouse shall cooperate in good faith to provide substantially the information that the Buyer requests in such a manner as to not waive any attorney-client or legal privilege, or contravene any applicable Law, fiduciary duty or binding Contract.
(b) In order to facilitate the resolution of any claims made against or incurred by any Business Entity (as it relates to the Business or the Group Companies), for a period of seven years after the Closing or, if shorter, the applicable period specified in the Buyer’s document retention policy, the Buyer shall (i) retain the books and records relating to the Group Companies relating to periods prior to the Closing and (ii) afford the Representatives of TreeHouse reasonable access (including the right to make, at TreeHouse’s expense, photocopies), subject to any limitations resulting from any Public Health Measures, during normal business hours, to such books and records; provided, however, that the Buyer shall notify TreeHouse in writing at least 30 days in advance of destroying any such books and records prior to the seventh anniversary of the Closing Date in order to provide TreeHouse the opportunity to copy such books and records in accordance with this Section 5.2(b). Notwithstanding anything to the contrary in this Agreement, the Buyer shall not be required to provide access to any information to TreeHouse or its Representatives if the Buyer determines, in its reasonable discretion, that (i) such access or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect jeopardize any attorney-client or other legal privilege or privilege, (ii) such access would contravene any applicable Laws (including any Public Health Measures), fiduciary duty or binding Contract entered into prior to the “Disclosure Limitations”)date hereof, or (iii) the information to be accessed is pertinent to any litigation in which a Business Entity or any of its Affiliates, on the one hand, and the Buyer or any of its Affiliates or the Buyer Related Parties, on the other hand, are adverse parties; provided that that, with respect to clauses (i) and (ii), the Parties Buyer shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate to provide substantially the information that TreeHouse requests in such a manner as to not waive any such confidentiality agreement attorney-client or legal privilege, or contravene any applicable Law, fiduciary duty or cause such privilege to be undermined with respect to such information.
(b) The information provided pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by 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. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such informationbinding Contract.
(c) From and In order to facilitate the resolution of any claims made against or incurred by the Buyer or the Group Companies for a period of seven years after the ClosingClosing or, until if shorter, the closing applicable period specified in TreeHouse’s document retention policy, TreeHouse shall (i) retain the books and records relating to the Group Companies and the Business relating to periods prior to the Closing which shall not otherwise have been delivered to the Buyer and (ii) upon reasonable notice, afford the Representatives of the Chapter 11 CaseBuyer reasonable access (including the right to make, Buyer will provide Seller and its Representativesat the Buyer’s expense, with reasonable accessphotocopies), subject to any limitations resulting from any Public Health Measures, during normal business hours, to such books and upon reasonable records; provided, however, that TreeHouse shall notify the Buyer in writing at least 30 days in advance notice, subject to reasonable denials of access or delays destroying any such books and records prior to the extent seventh anniversary of the Closing Date in order to provide the Buyer the opportunity to copy such books and records in accordance with this Section 5.2(c). Notwithstanding anything to the contrary in this Agreement, TreeHouse shall not be required to provide access to any information to the Buyer or its Representatives if TreeHouse determines, in its reasonable discretion, that (i) such access would unreasonably interfere with the operations of Buyer jeopardize any attorney-client or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Courtlegal privilege, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate such access would contravene any applicable Laws (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of SellerPublic Health Measures), fiduciary duty or binding Contract entered into prior to the date hereof, or (iii) complying with applicable Laws the information to be accessed is pertinent to any litigation in which TreeHouse or (iv) any of its Affiliates, on the one hand, and the Buyer or any of its Affiliates or the Buyer Related Parties, on the other reasonable business purposeshand, are adverse parties; provided that Buyer that, with respect to clauses (i) and (ii), TreeHouse shall not be obligated cooperate in good faith to provide substantially the information that the Buyer requests in such a manner as to not waive any such access that wouldattorney-client or legal privilege, in the reasonableor contravene any applicable Law, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter fiduciary duty or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose ofbinding Contract.
Appears in 1 contract
Covenants Regarding Information. (a) Subject to the Bidding Procedures and applicable Law, from From the date hereof until the Closing Date or earlier termination of this AgreementDate, upon reasonable requestthe Company shall, Seller and shall cause its Subsidiaries to, afford the Buyer and its Representatives officers, directors, principals, employees, advisors, auditors, agents and other representatives (collectively, "Representatives") reasonable access (including for inspection and copying) at all reasonable times to the Representatives, properties, offices, plants and other facilities, books and records (including Tax books and records) of the Transferred Subsidiaries Company and each of its Subsidiaries, and shall furnish the Buyer with such financial, operating and other data and information, and access to all information as the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request request, in connection with each case to the transactions contemplated by this Agreementextent that such access and disclosure would not obligate the Company or the Subsidiaries to take any actions that would unreasonably disrupt the normal course of their businesses or violate the terms of any Contract to which the Company or the Subsidiaries is bound or any applicable law or regulation. All requests for access shall be directed to the Stockholder Representative or such other Person as the Company may designate in writing from time to time (the "Designated Contacts"). Notwithstanding anything in this Section 6.2 to the contrary in this Agreementcontrary, Seller the Company shall not be required to provide access or to or disclose any information to the Buyer or its Representatives if (i) such access or disclosure is prohibited pursuant (i) would cause significant competitive harm to the terms of a confidentiality agreement with a third party entered into prior to Company or its Subsidiaries if the date hereof, transactions contemplated by this Agreement are not consummated or (ii) such access would be in violation of applicable Laws or disclosure would violate applicable Lawregulations of any Governmental Authority (including anti-competition Laws) or the provisions of any agreement to which the Company or any of its Subsidiaries is a party. Other than the Designated Contacts, or the Buyer is not authorized to and shall not (iiiand shall cause its Representatives and Affiliates not to) such access or disclosure would adversely affect contact any attorney-client officer, director, employee, franchisee, customer, supplier, distributor, lender or other legal privilege material business relation of the Company or contravene any applicable Laws (the “Disclosure Limitations”); provided that the Parties shall reasonably cooperate of its Subsidiaries in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of Seller after consultation connection with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such information.
(b) The information provided pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by 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. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences hereby prior to the Closing Date, for without the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing prior written consent of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose ofCompany.
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Covenants Regarding Information. (a) Subject In order to facilitate the resolution of any claims made by or against or incurred by Buyer or the Company or any of its Subsidiaries after the Closing or for any other reasonable purpose, for a period of six years following the Closing, Seller shall, subject to applicable Law: (i) retain all books, documents, information, data, files and other records of Seller that relate to the Bidding Procedures Company and applicable Law, from the date hereof until its Subsidiaries and their business and operations for periods prior to the Closing Date and which shall not otherwise have been delivered to Buyer or earlier termination of this Agreement, the Company or its Subsidiaries; (ii) upon reasonable requestnotice, Seller shall afford Buyer and the Company and its Subsidiaries and their respective Representatives reasonable access to the properties, offices, plants and other facilities, books and records (including Tax books for inspection and records) of the Transferred Subsidiaries and shall furnish Buyer with such financialcopying, operating and other data and information, and access to all the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated by this Agreement. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to provide access to or disclose any information to Buyer or its Representatives if (i) such access or disclosure is prohibited pursuant to the terms of a confidentiality agreement with a third party entered into prior to the date hereof, (ii) such access or disclosure would violate applicable Law, or (iii) such access or disclosure would adversely affect any attorney-client or other legal privilege or contravene any applicable Laws (the “Disclosure Limitations”at Buyer’s expense); provided that the Parties shall reasonably cooperate in seeking to find a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of Seller after consultation with outside counsel) violate any such confidentiality agreement or applicable Law, or cause such privilege to be undermined with respect to such information.
(b) The information provided pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by 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. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, to such books, documents, information, data, files and other records, including in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving or relating to the Company or any of its Subsidiaries; and (iii) furnish Buyer and the Company and its Subsidiaries and their respective Representatives reasonable assistance (at Buyer’s expense), including access to personnel, in connection with any such claims and other proceedings; provided, that such access shall be granted until the later of six years following the Closing and the expiration date of the applicable statute of limitations with respect to tax matters. Seller shall permit, promptly upon reasonable advance request, Buyer and the Company and its Subsidiaries and their respective Representatives to use original copies of any such records for purposes of litigation; provided, that such records shall promptly be returned to Seller following such use. During such six year period, Seller shall not destroy any such books and records without providing Buyer with written notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere and providing Buyer with the operations opportunity to obtain copies of Buyer or the business of the Transferred Subsidiaries, to the such books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences at least 60 days prior to the Closing Date, for destruction thereof.
(b) In order to facilitate the purposes of (i) complying with the requirements resolution of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns made by or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of against or incurred by Seller or the Company or any of its Subsidiaries after the Closing or for any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will notpurpose, for a period of three six years following the Closing, subject to applicable Law, Buyer and the Company shall, upon reasonable notice, afford Seller and its Representatives reasonable access (3) including for inspection and copying, at Seller’s expense), during normal business hours, to all books, documents, information, data, files and other records that relate to the Company and its Subsidiaries and their business and operations that shall not have been delivered by Seller to Buyer, including in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving or relating to the Company or any of its Subsidiaries; provided, that such access shall be granted until the later of six years following the Closing Dateand the expiration date of the applicable statute of limitations with respect to tax matters. Buyer and the Company and its Subsidiaries shall permit, destroypromptly upon reasonable request, alter or otherwise dispose Seller and its Representatives to use original copies of any such records for purposes of litigation; provided, that such records shall promptly be returned to Buyer, the Company or such Subsidiary of the Company (as applicable) following such use. During such six year period, Buyer and the Company and its Subsidiaries shall not destroy any such books and records without first offering providing Seller with written notice, and providing Seller with the opportunity to surrender to Seller obtain copies of such books and records or any portion thereof that Buyer may intend records, at least 60 days prior to destroy, alter or dispose ofthe destruction thereof.
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Sources: Membership Interest Purchase Agreement (Standard Register Co)
Covenants Regarding Information. (a) Subject to During the Bidding Procedures and applicable Law, from the date hereof until the Closing Date or earlier termination of this AgreementInterim Period, upon reasonable requestnotice, Seller the Company and its Subsidiaries shall afford Buyer the Acquiror and its Representatives reasonable access (including the right to make, at the Acquiror’s expense, photocopies) to the properties, offices, plants and other facilities, assets, personnel and other Representatives, Contracts, operating and financial reports and data (including internal and audited financial statements), Tax Returns, Tax elections and other records relating to Taxes, work papers, books and records (including Tax books and records) of the Transferred Company and its Subsidiaries for any reasonable purpose related to this Agreement and shall furnish Buyer with such financial, operating and other data and information, and access to all the officers, employees, accountants and other Representatives of the Transferred Subsidiaries, as Buyer may reasonably request in connection with the transactions contemplated by this Agreementhereby (including for purposes of discussing or negotiating new employment or compensation arrangements that would apply post-Closing); provided, however, that any such access shall be conducted at the Acquiror’s sole expense and during normal business hours, under the supervision of the Company’s personnel and in such a manner as not unreasonably to interfere with the normal operations of the Company and its Subsidiaries; provided further, that with respect to any properties, plants or other facilities of the Company and its Subsidiaries, any such access shall not include access for the purpose of conducting invasive or intrusive sampling or testing of environmental media at any such properties, plants or other facilities without the prior written consent of the Company. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to provide the Company and its Subsidiaries may restrict or prohibit access to or disclose any information to Buyer by the Acquiror or its Representatives if to the extent (i1) such access would result in the waiver of any attorney-client or other legal privilege applicable to such information, or (2) such access would contravene any applicable Laws or the confidentiality and non-disclosure provisions of any Contract to which the Company or its Subsidiary is prohibited pursuant to the terms of a confidentiality agreement with a third party entered into prior to the date hereof; provided, that the Company shall use reasonable best efforts to provide such information in a manner that does not waive any such attorney-client or other legal privilege or violate any such applicable Law or Contract.
(b) In order to facilitate the resolution of any claims made against or incurred by the Unitholders (in their capacity as Unitholders and solely to the extent such claims relate to their ownership of Equity Interests in the Company), for a period of seven (7) years after the Closing or, if shorter, the applicable period specified in the Company’s document retention policy, (i) the Company or the Surviving Company, as the case may be, shall retain or cause to be retained the books and records of the Company and its Subsidiaries relating to periods prior to the Closing and, to the extent the Acquiror or the Surviving Company seeks to destroy any of such books and records prior to the seventh (7th) anniversary of the Closing Date, the Acquiror or the Surviving Company shall notify the Unitholders in writing at least thirty (30) days in advance of destroying any such books and records in order to provide the Unitholders the opportunity to copy such books and records (subject to the proviso in clause (ii) below) in accordance with this Section 5.2(b) prior to destruction; and (ii) the Acquiror and the Surviving Company shall afford the Representatives of the Unitholders, at their sole expense, reasonable access (including the right to make copies), during normal business hours and upon reasonable prior written notice, to such access books and records to the extent related to such Unitholders prior ownership over Equity Interest in the Company or disclosure would violate as necessary to facilitate the resolution of any such claims made against or incurred by the applicable LawUnitholder; provided, or that Company and its Subsidiaries will be entitled to withhold portions of any such books and records to the extent (iiiA) such access or disclosure would adversely affect result in the waiver of any attorney-client or other legal privilege applicable to such information, or (B) such access would contravene any applicable Laws (or the “Disclosure Limitations”)confidentiality and non-disclosure provisions of any Contract to which the Company or its Subsidiary is party; provided provided, that the Parties Acquiror and the Surviving Company shall reasonably cooperate in seeking use reasonable best efforts to find a way to allow disclosure of provide such information to the extent doing so would in a manner that does not (in the good faith belief of Seller after consultation with outside counsel) waive any such attorney-client or other legal privilege or violate any such confidentiality agreement applicable Law or applicable Law, or cause such privilege to be undermined with respect to such informationContract.
(b) The information provided pursuant to this Section 6.2 prior to Closing will be used solely for the purpose of effecting the transactions contemplated hereby, and will be governed by 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. Seller does not make any representation or warranty as to the accuracy of any information, if any, provided pursuant to this Section 6.2, and Buyer may not rely on the accuracy of any such information.
(c) From and after the Closing, until the closing of the Chapter 11 Case, Buyer will provide Seller and its Representatives, with reasonable access, during normal business hours, and upon reasonable advance notice, subject to reasonable denials of access or delays to the extent any such access would unreasonably interfere with the operations of Buyer or the business of the Transferred Subsidiaries, to the books and records, including work papers, schedules, memoranda, and other documents (for the purpose of examining and copying) of the Transferred Subsidiaries with respect to periods or occurrences prior to the Closing Date, for the purposes of (i) complying with the requirements of any Governmental Authority, including the Bankruptcy Court, (ii) the closing of the Chapter 11 Case and the wind down of Seller’s estate (including reconciliation of claims and preparation of Tax Returns or other Tax proceedings and the functions of any trusts established under a Chapter 11 plan of Seller or any other successors of Seller), (iii) complying with applicable Laws or (iv) other reasonable business purposes; provided that Buyer shall not be obligated to provide any such access that would, in the reasonable, good faith judgment of Buyer, conflict with the Disclosure Limitations. Unless otherwise consented to in writing by Seller, Buyer will not, for a period of three (3) years following the Closing Date, destroy, alter or otherwise dispose of any of such books and records without first offering to surrender to Seller such books and records or any portion thereof that Buyer may intend to destroy, alter or dispose of.
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