Covenants Regarding Information. (a) In order to facilitate the resolution of any claims made against or incurred by the Seller (as it relates to the Company) or in connection with historical tax or financial matters or audits relating to the Company, for a period of five (5) years after the Closing, the Buyer shall (i) retain the books and records relating to the Company relating to periods prior to the Closing and (ii) afford the Representatives of the Seller reasonable access (including the right to make, at the Seller’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the Buyer shall notify the Seller in writing at least thirty (30) days in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Seller the opportunity to copy such books and records in accordance with this Section 7.1(a). Notwithstanding anything to the contrary contained in this Section 7.1(a), the Seller and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information that would reasonably be likely to result in the loss of attorney-client privilege of the Buyer, the Company or any of their respective Affiliates, (clauses (a) and (b), collectively, the “Seller Post-Close Access Limitations”); provided, that the Buyer and its Affiliates shall use commercially reasonable efforts to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege. (b) For a period of five (5) years after the Closing, the Seller shall (i) retain all books and records relating to the Business relating to periods prior to the Closing to the extent not transferred in connection with the Pre-Transaction Asset Contribution, and (ii) afford the Representatives of the Buyer reasonable access (including the right to make, at the Buyer’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the Seller shall notify the Buyer in writing at least 30 days in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Buyer the opportunity to copy such books and records in accordance with this Section 7.1(b). Notwithstanding anything to the contrary contained in this Section 7.1(b), the Buyer and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information that would reasonably be likely to result in the loss of attorney-client privilege of the Seller or its Affiliates; provided, that the Seller and its Affiliates shall use commercially reasonable efforts to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege. (c) For a period of five (5) years from and after the Closing, the Seller shall, and shall cause each of its Affiliates to, keep confidential and not disclose without the prior written consent of the Buyer and not otherwise use any information of a confidential or proprietary nature of or regarding the Company or the Business, including methods of operation, business methods or processes, products, prices, fees, costs, technology, inventions, trade secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters (collectively, “Business Confidential Information”); provided, that (1) Business Confidential Information shall not include information that (i) is currently generally publicly available or that has, prior to such disclosure, become generally publicly available, in each case other than as a result of disclosure by or on behalf of the Seller or any of its Affiliates in breach of this Agreement, or (ii) is independently developed by or on behalf of the Seller or its Representatives without any reference to or use of the Business Confidential Information or any breach of this Section 7.1(c) and (2) the covenants in this Section 7.1(c) will not be limited in duration, to five (5) years from and after the Closing, with respect to any Business Confidential Information that constitutes a trade secret, but, rather, such covenants shall remain in place so long as such Business Confidential Information remains a trade secret under applicable Law (it being understood that such covenants shall nonetheless remain in place if such trade secret ceases to qualify as such as a result of acts or omissions by Seller or its Affiliates in violation of this Section 7.1(c)). If the Seller is requested by any Governmental Authority or based on the advice of counsel, is legally compelled to disclose any Business Confidential Information, the Seller or its Affiliate may disclose only the minimum amount of such Business Confidential Information as is required or legally compelled to be disclosed; provided, however, that, prior to making any such disclosure, the Seller shall provide the Buyer (to the extent it is legally permissible to do so) with (a) written notice as promptly as reasonably practicable of such compulsion or request (and including a copy of any written documentation or correspondence related thereto, if applicable) so that the Buyer or the Company may seek a protective order or other remedy and (b) reasonable assistance to oppose, or seek a protective order or other limitations on, such disclosure at the Buyer’s sole cost and expense. Notwithstanding anything herein to the contrary, neither the Seller nor its Representatives shall be required to provide notice (except as set forth in clause (i) of this sentence) or seek consent to disclose any Business Confidential Information in connection with (i) disclosures required by Law (including any filing required under the Securities Exchange Act of 1934 or the Securities Act of 1933), Order or the New York Stock Exchange, or any other applicable stock exchange rules, in which case the party making such determination will (A) to the extent practical and permitted by applicable Law, notify the Buyer of such disclosure prior thereto, and (B) if practicable under the circumstances, use commercially reasonable efforts to allow the Buyer reasonable time to comment on such disclosure, (ii) disclosures required by a routine audit by, or blanket request from, a regulatory or Governmental Authority that do not, in each case, specifically target the Company or the Business Confidential Information, (iii) disclosures to Representatives of the Seller who need to know such information for purposes of advising Seller on its rights and obligations under this Agreement, or in connection with Seller’s ordinary course financial reporting or tax return preparation and filing, provided that such Representatives are subject to customary confidentiality obligations with respect thereto, and (iv) disclosures required by a Tax authority or Governmental Authority that are reasonably required for the purposes of the proper management of Tax affairs of the Seller (or its Affiliates) in its ordinary course of business.
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Covenants Regarding Information. (a) From the date hereof until the Closing Date, upon reasonable notice, the Seller shall afford the Buyer, at the Buyer’s expense, during normal business hours, under the supervision of the Seller’s or any of its Subsidiaries’ personnel, reasonable access to the properties, offices, plants and other facilities, books and records of the Seller and its Subsidiaries relating exclusively to the Business, and shall furnish the Buyer with such financial, operating and other data and information to the extent relating exclusively to the Business as the Buyer may reasonably request. Notwithstanding anything to the contrary in this Agreement, the Seller shall not be required to disclose any information to the Buyer if such disclosure would, in the Seller’s sole discretion, (i) contravene any applicable laws or fiduciary duty (ii) have a material adverse effect on Seller, or (iii) relate to any consolidated, combined or unitary tax return filed by the Seller or any Affiliate thereof or any of their respective predecessor entities.
(b) In order to facilitate the resolution of any claims made against or incurred by the Seller a party (as it relates to the Company) or in connection with historical tax or financial matters or audits relating to the CompanyBusiness), for a period of five (5) ten years after the ClosingClosing or, if shorter, the Buyer applicable period specified in a party’s document retention policy, each party shall (i) retain the books and records relating to the Company Business relating to periods prior to the Closing and (ii) upon reasonable notice, afford the Representatives of the Seller other party reasonable access (including the right to make, at the Sellerother party’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the Buyer each party shall notify the Seller in writing at least thirty (30) days in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Seller the opportunity to copy such books and records in accordance with this Section 7.1(a). Notwithstanding anything to the contrary contained in this Section 7.1(a), the Seller and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information that would reasonably be likely to result in the loss of attorney-client privilege of the Buyer, the Company or any of their respective Affiliates, (clauses (a) and (b), collectively, the “Seller Post-Close Access Limitations”); provided, that the Buyer and its Affiliates shall use commercially reasonable efforts to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege.
(b) For a period of five (5) years after the Closing, the Seller shall (i) retain all books and records relating to the Business relating to periods prior to the Closing to the extent not transferred in connection with the Pre-Transaction Asset Contribution, and (ii) afford the Representatives of the Buyer reasonable access (including the right to make, at the Buyer’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the Seller shall notify the Buyer party in writing at least 30 days in advance of destroying any such books and records prior to the fifth tenth anniversary of the Closing Date in order to provide the Buyer other party the opportunity to copy such books and records in accordance with this Section 7.1(b4.2(b). Notwithstanding anything to the contrary contained in this Section 7.1(b), the Buyer and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information that would reasonably be likely to result in the loss of attorney-client privilege of the Seller or its Affiliates; provided, that the Seller and its Affiliates shall use commercially reasonable efforts to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege.
(c) For a period of five (5) years from and after the Closing, the Seller shall, and shall cause each of its Affiliates to, keep confidential and not disclose without the prior written consent of the Buyer and not otherwise use any information of a confidential or proprietary nature of or regarding the Company or the Business, including methods of operation, business methods or processes, products, prices, fees, costs, technology, inventions, trade secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters (collectively, “Business Confidential Information”); provided, that (1) Business Confidential Information shall not include information that (i) is currently generally publicly available or that has, prior to such disclosure, become generally publicly available, in each case other than as a result of disclosure by or on behalf of the Seller or any of its Affiliates in breach of this Agreement, or (ii) is independently developed by or on behalf of the Seller or its Representatives without any reference to or use of the Business Confidential Information or any breach of this Section 7.1(c) and (2) the covenants in this Section 7.1(c) will not be limited in duration, to five (5) years from and after the Closing, with respect to any Business Confidential Information that constitutes a trade secret, but, rather, such covenants shall remain in place so long as such Business Confidential Information remains a trade secret under applicable Law (it being understood that such covenants shall nonetheless remain in place if such trade secret ceases to qualify as such as a result of acts or omissions by Seller or its Affiliates in violation of this Section 7.1(c)). If the Seller is requested by any Governmental Authority or based on the advice of counsel, is legally compelled to disclose any Business Confidential Information, the Seller or its Affiliate may disclose only the minimum amount of such Business Confidential Information as is required or legally compelled to be disclosed; provided, however, that, prior to making any such disclosure, the Seller shall provide the Buyer (to the extent it is legally permissible to do so) with (a) written notice as promptly as reasonably practicable of such compulsion or request (and including a copy of any written documentation or correspondence related thereto, if applicable) so that the Buyer or the Company may seek a protective order or other remedy and (b) reasonable assistance to oppose, or seek a protective order or other limitations on, such disclosure at the Buyer’s sole cost and expense. Notwithstanding anything herein to the contrary, neither the Seller nor its Representatives shall be required to provide notice (except as set forth in clause (i) of this sentence) or seek consent to disclose any Business Confidential Information in connection with (i) disclosures required by Law (including any filing required under the Securities Exchange Act of 1934 or the Securities Act of 1933), Order or the New York Stock Exchange, or any other applicable stock exchange rules, in which case the party making such determination will (A) to the extent practical and permitted by applicable Law, notify the Buyer of such disclosure prior thereto, and (B) if practicable under the circumstances, use commercially reasonable efforts to allow the Buyer reasonable time to comment on such disclosure, (ii) disclosures required by a routine audit by, or blanket request from, a regulatory or Governmental Authority that do not, in each case, specifically target the Company or the Business Confidential Information, (iii) disclosures to Representatives of the Seller who need to know such information for purposes of advising Seller on its rights and obligations under this Agreement, or in connection with Seller’s ordinary course financial reporting or tax return preparation and filing, provided that such Representatives are subject to customary confidentiality obligations with respect thereto, and (iv) disclosures required by a Tax authority or Governmental Authority that are reasonably required for the purposes of the proper management of Tax affairs of the Seller (or its Affiliates) in its ordinary course of business.
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Covenants Regarding Information. (a) In order to facilitate the resolution of any claims made against or incurred by the Seller (as it relates to the Company) or in connection with historical tax or financial matters or audits relating to Company and the CompanyCompany Subsidiaries), for a period of five three (53) years after the Closing, the Buyer shall will (i) retain the any books and records relating to the Company and the Company Subsidiaries relating to periods prior to the Closing which have been delivered to the Buyer and (ii) afford the Seller and its Representatives of the Seller reasonable access (including the right to make, at the Seller’s expense, photocopies), during normal business hours, to such books and records; provided, however, that the Buyer shall must notify the Seller in writing at least thirty (30) days in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Seller the opportunity to copy such books and records in accordance with this Section 7.1(a6.2(a) (Covenants Regarding Information). Notwithstanding anything to the contrary contained in this Section 7.1(a), the Seller and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or .
(b) information that would reasonably be likely In order to result in facilitate the loss resolution of attorney-client privilege of any claims made against or incurred by the Buyer, or the Company or any of their respective Affiliatesthe Company Subsidiaries, (clauses (a) and (b), collectively, the “Seller Post-Close Access Limitations”); provided, that the Buyer and its Affiliates shall use commercially reasonable efforts to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege.
(b) For for a period of five three (53) years after the Closing, the Seller shall will (i) retain all the books and records relating to the Business Company and the Company Subsidiaries relating to periods prior to the Closing which have not otherwise been delivered to the extent not transferred in connection with the Pre-Transaction Asset Contribution, Buyer and (ii) upon reasonable notice, afford the Buyer and its Representatives of the Buyer reasonable access (including the right to make, at the Buyer’s ’ expense, photocopies), during normal business hours, to such books and records; provided, however, that the Seller shall must notify the Buyer in writing at least 30 thirty (30) days in advance of destroying any such books and records prior to the fifth anniversary of the Closing Date in order to provide the Buyer the opportunity to copy such books and records in accordance with this Section 7.1(b6.2(b) (Covenants Regarding Information). Notwithstanding anything to the contrary contained in this Section 7.1(b), the Buyer and its Representatives shall not be required to have access to (a) individual performance or evaluation records, medical histories, personally-identifiable information, or other information, in each case to the extent such access would be in violation of applicable Laws or (b) information that would reasonably be likely to result in the loss of attorney-client privilege of the Seller or its Affiliates; provided, that the Seller and its Affiliates shall use commercially reasonable efforts to provide access to such information in an alternative manner that does not violate applicable Law or result in the loss of any privilege.
(c) For a period of five (5) years from and after the Closing, the Seller shall, and shall cause each of its Affiliates to, keep confidential and not disclose without the prior written consent of the Buyer and not otherwise use any information of a confidential or proprietary nature of or regarding the Company or the Business, including methods of operation, business methods or processes, products, prices, fees, costs, technology, inventions, trade secrets, know-how, Software, marketing methods, plans, personnel, suppliers, competitors, markets or other specialized information or proprietary matters (collectively, “Business Confidential Information”); provided, that (1) Business Confidential Information shall not include information that (i) is currently generally publicly available or that has, prior to such disclosure, become generally publicly available, in each case other than as a result of disclosure by or on behalf of the Seller or any of its Affiliates in breach of this Agreement, or (ii) is independently developed by or on behalf of the Seller or its Representatives without any reference to or use of the Business Confidential Information or any breach of this Section 7.1(c) and (2) the covenants in this Section 7.1(c) will not be limited in duration, to five (5) years from and after the Closing, with respect to any Business Confidential Information that constitutes a trade secret, but, rather, such covenants shall remain in place so long as such Business Confidential Information remains a trade secret under applicable Law (it being understood that such covenants shall nonetheless remain in place if such trade secret ceases to qualify as such as a result of acts or omissions by Seller or its Affiliates in violation of this Section 7.1(c)). If the Seller is requested by any Governmental Authority or based on the advice of counsel, is legally compelled to disclose any Business Confidential Information, the Seller or its Affiliate may disclose only the minimum amount of such Business Confidential Information as is required or legally compelled to be disclosed; provided, however, that, prior to making any such disclosure, the Seller shall provide the Buyer (to the extent it is legally permissible to do so) with (a) written notice as promptly as reasonably practicable of such compulsion or request (and including a copy of any written documentation or correspondence related thereto, if applicable) so that the Buyer or the Company may seek a protective order or other remedy and (b) reasonable assistance to oppose, or seek a protective order or other limitations on, such disclosure at the Buyer’s sole cost and expense. Notwithstanding anything herein to the contrary, neither the Seller nor its Representatives shall be required to provide notice (except as set forth in clause (i) of this sentence) or seek consent to disclose any Business Confidential Information in connection with (i) disclosures required by Law (including any filing required under the Securities Exchange Act of 1934 or the Securities Act of 1933), Order or the New York Stock Exchange, or any other applicable stock exchange rules, in which case the party making such determination will (A) to the extent practical and permitted by applicable Law, notify the Buyer of such disclosure prior thereto, and (B) if practicable under the circumstances, use commercially reasonable efforts to allow the Buyer reasonable time to comment on such disclosure, (ii) disclosures required by a routine audit by, or blanket request from, a regulatory or Governmental Authority that do not, in each case, specifically target the Company or the Business Confidential Information, (iii) disclosures to Representatives of the Seller who need to know such information for purposes of advising Seller on its rights and obligations under this Agreement, or in connection with Seller’s ordinary course financial reporting or tax return preparation and filing, provided that such Representatives are subject to customary confidentiality obligations with respect thereto, and (iv) disclosures required by a Tax authority or Governmental Authority that are reasonably required for the purposes of the proper management of Tax affairs of the Seller (or its Affiliates) in its ordinary course of business.
Appears in 1 contract
Sources: Stock Purchase Agreement (Rexford Industrial Realty, Inc.)