Information and Access. (a) Subject to applicable Law, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice, to the employees, officers, agents, facilities, books and records of the Company and its Subsidiaries and (ii) the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its Subsidiaries to provide access or to disclose information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements. (b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms. (c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule. (d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions. (e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 3 contracts
Sources: Merger Agreement (Boeing Co), Merger Agreement (Spirit AeroSystems Holdings, Inc.), Merger Agreement (Boeing Co)
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause, its and their respective Representatives to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the Schedule 14D-9 or Schedule TO (including with respect to Parent, information concerning the Investors) and any information or documentation to effect the expiration of all waiting periods under applicable LawAntitrust Laws and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Affiliates to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the Transactions and, with respect to the information supplied in writing by or on behalf of Parent, its Affiliates or its or their respective Representatives for inclusion in or incorporation by reference into the Schedule 14D-9, including with respect to the Investors. Each of Parent and the Company acknowledges and agrees that such information supplied by it pursuant to this Section 7.8(a) (as applicable) will be correct and complete in all material respects at the time so supplied.
(b) In addition to and without limiting the rights and obligations set forth in Section 7.8(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access, during normal business hours, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of pursuant to Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeIX, to the employees, officersCompany Employees, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 7.8(c): (i) neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure furnish such information or documents to the extent doing so would, or would reasonably be expected to, in the reasonable opinion of the Company’s outside legal counsel result in (A) contravene any a violation of applicable Law (including Data Protection Laws) or Pandemic MeasureLaw, (B) result the breach of any contractual confidentiality obligations in any Contract with a third party entered into prior to the waiver date of this Agreement or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections following the date of this Agreement in compliance with Section 7.1 and confidentiality protections) or other applicable legal privilege or protection, Section 7.2; (C) in waive the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation protection of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, in any material respect; or (D) such information or documents are reasonably pertinent to any adverse Proceeding between the Parties Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand (xsubject to any rules or guidelines of discovery applicable to such adverse Proceeding); and (ii) understand in no event shall the work papers of the Company’s and agree its Subsidiaries’ independent accountants and auditors be accessible to Parent or any of its Representative unless and until such accountants and auditors have provided a consent related thereto in form and substance reasonably acceptable to such auditors or independent accountants. Any investigation conducted pursuant to the access contemplated by this Section 7.8(b) will be conducted in a manner that they have does not unreasonably interfere with the conduct of the business of the Company and its Subsidiaries and that would not reasonably be expected to create a commonality risk of interest damage or destruction to any property or assets of the Company or its Subsidiaries. Any access to the properties of the Company and its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include the right to perform any “invasive” testing or soil, air or groundwater sampling, including any Phase II environmental assessments. All requests for such access or information made pursuant to this Section 7.8(b) shall be initially directed to the Person set forth on Section 7.8(b) of the Company Disclosure Schedule, which Person may be replaced by the Company at any time by providing written notice to Parent, and any access granted in connection with a request made pursuant to this Section 7.8(b) shall be supervised by such Persons.
(c) In the event that the Company objects to any request submitted pursuant to Section 7.8(b) on the basis of one or more of the matters set forth in clause (i) of Section 7.8(b), it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons and reasonable support therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable disclosure that does not suffer from any of the impediments expressly set forth in clause (i) of Section 7.8(b) (other than clause (D)) including through the use of commercially reasonable efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual confidentiality obligations contemplated by clause (i)(B) of Section 7.8(b), obtaining a waiver with respect to or consent under such matters contractual confidentiality obligations.
(d) Without limiting the generality of the other provisions of this Section 7.8, the Company and it is Parent, as each deems advisable and necessary, after consultation with their desirerespective outside legal counsel, intention may reasonably designate competitively sensitive information and mutual understanding documents (including those that relate to valuation of the sharing Company or Parent (as the case may be)) as “Outside Counsel Only Information.” Such information and documents shall only be provided to the outside legal counsel of the Company or Parent (as the case may be), or subject to such material other similar restrictions mutually agreed to by the Company and information is not intended toParent, and shall notsubject to any amendment, waive supplement or diminish in other modification to the Confidentiality Agreement or additional confidentiality or joint defense agreement between or among the Company and Parent; provided, however, that, subject to any way applicable Laws relating to the confidentiality exchange of information, the outside legal counsel receiving such material information and documents may prepare one or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in more reports summarizing the loss results of any analysis of any such privilege shared information and documents, and disclose such reports, other summaries or protection, including entering into a joint defense agreement or other arrangementsaggregated information derived from such shared information and documents to Representatives of such outside legal counsel’s client.
(be) All No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 7.8 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Section 7.5, Section 7.6, this Section 7.8 or otherwise in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement mutatis mutandis as if Parent were Counterparty (as defined in the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, ) and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree ; provided, that, notwithstanding in the event of a conflict, the provisions of Section 7.13 shall override any provision conflicting provisions of the Confidentiality Agreement, the Clean Team Agreementand any Person who is a potential source of, the or may provide, equity, debt or any other type of financing to Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier any of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this the Transactions shall be deemed a “Representative” for purposes of the Confidentiality Agreement and without the Transactionsprior written consent of the Company.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Cards Acquisition Inc.), Agreement and Plan of Merger (Collectors Universe Inc), Merger Agreement (Collectors Universe Inc)
Information and Access. (a) Subject to applicable Law, from From the date of this Agreement and continuing until the earlier of the Effective Time Time, but subject to Section 5.27, upon reasonable notice and the termination of this Agreement in accordance with the terms of Article VIIsubject to applicable Law, (i) the Company shall (will, and shall will cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, and will direct its and their officers, directors, employees, contractors, Representatives and Affiliates to, afford to the officers, employees, counsel, bankers, accountants and other authorized Representatives of Parent and the Parent Special Committee reasonable access during normal business hours and upon reasonable advance noticeprior notice to all its properties, to the employees, officers, agents, facilitiespersonnel, books and records for purposes of satisfying Parent’s rights and obligations under this Agreement and furnish promptly to such Persons such information concerning its business, properties, personnel and affairs as such Persons will from time to time reasonably request for purposes of satisfying Parent’s rights and obligations under this Agreement. The Company shall be entitled to have a Representative present at all times during any such inspection, and all such inspections granted pursuant to this Section 5.8 shall be subject to the Company’s reasonable security measures. Subject to the terms of this Agreement, the Company shall maintain and exercise complete control and supervision over the Company and its Subsidiaries.
(b) From the date of this Agreement until the Effective Time, subject to applicable Law, Parent shall act reasonably and in good faith in responding to such requests for information as the Company will from time to time reasonably make, to the extent reasonably necessary to enable the Company to consummate the transactions contemplated hereby in accordance with the terms herewith and consistent with the Company’s rights and obligations under this Agreement.
(c) No investigation or information provided pursuant to this Section 5.8 shall affect or otherwise obviate or diminish any representations or warranties of any Party or conditions to the obligations of any Party.
(d) Each of the Company and Parent will hold all information furnished by or behalf of the other Party or its Subsidiaries Representatives pursuant to this Section 5.8 in confidence in accordance with the provisions of that certain Non-Disclosure Agreement, dated as of August 29, 2024 (the “Confidentiality Agreement”), by and (ii) between the Company and Parent, provided that Parent shall (and shall cause its Subsidiaries to) furnish promptly be permitted to Parent all other provide information and documents concerning or regarding its businesses, properties and assets and personnel to A/N on a confidential basis as may reasonably be requested by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its Subsidiaries to provide access or to disclose information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company /N and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, cause A/N to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance comply with the terms confidentiality and conditions of this Agreement, use restrictions set forth in the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementsinformation.
(be) All information and documents disclosed Nothing in this Section 5.8 or otherwise made available in connection with any other part of this Agreement and shall require the Transactions Company or Parent, as applicable, to permit any inspection of, or to disclose:
(i) any information concerning Alternative Company Transaction Proposals or Alternative Parent Transaction Proposals, which shall be governed by Section 5.3 and Section 5.4 (in the terms case of Alternative Company Transaction Proposals) and conditions Section 5.5 and Section 5.6 (in the case of Alternative Parent Transaction Proposals);
(ii) any information regarding the deliberations of the Confidentiality AgreementCompany Board, the Clean Team Agreement, the Parent Confidentiality Agreement and the Board or Parent Clean Team AgreementSpecial Committee, as applicable, and subject to applicable Laws relating with respect to the exchange transactions contemplated hereby or sharing of information and any restrictions similar transaction or requirements imposed by transactions with any Governmental Entity. The Parties expressly agree thatother Person, notwithstanding any provision of the Confidentiality entry into this Agreement, or any materials provided to the Clean Team AgreementCompany Board, Parent Board or Parent Special Committee, as applicable, in connection therewith;
(iii) materials prepared by the Parent Confidentiality Agreement Special Committee’s or Parent’s financial or legal advisors or by the Company’s financial or legal advisors; or
(iv) materials the disclosure of which (A) would jeopardize any attorney-client or other privilege or (B) would contravene any applicable Law, fiduciary duty or confidentiality obligation, provided, that Parent Clean Team Agreement and the Company shall use commercially reasonable efforts to take such actions as may be reasonably required to allow such disclosure to be provided to the contraryother Party or its Representatives without waiving privilege or causing a violation of applicable Law, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its termsfiduciary duty or confidentiality obligation.
(cf) In furtherance of and without Without limiting the foregoinggenerality of Section 5.8(a), from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall will, and will cause its applicable Non-GCI Subsidiaries (and, solely until the consummation of the GCI Divestiture, GCI and its Subsidiaries) to, (i) with respect to any U.S. federal income or other material Tax Return of the Company or any of its Non-GCI Subsidiaries (or, solely with respect to taxable periods (or portions thereof) that end on or prior to the consummation of the GCI Divestiture, GCI and its Subsidiaries) that is required to be filed after the date of this Agreement, make commercially reasonable efforts to deliver a draft of such Tax Return to Parent for review and comment at least fifteen (15) days before it is due and consider in good faith Parent’s reasonable comments received by the Company within five (5) days after Parent received such Tax Return, (ii) with respect to any material Tax audit, action or other proceeding with respect to the Company or any of its Non-GCI Subsidiaries (or, solely with respect to taxable periods (or portions thereof) that end on or prior to the consummation of the GCI Divestiture, GCI and its Subsidiaries), promptly provide any updates (including any communications from a Governmental Authority) to Parent, and (iii) provide to Parent and its Representatives with the Subsidiaries such cooperation, documentation and information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide as Parent or its Representatives access or information pursuant to this Section 5.7 reasonably may request in connection with this Agreement and the Transactionsforegoing.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 3 contracts
Sources: Merger Agreement (Cco Holdings LLC), Merger Agreement (Liberty Broadband Corp), Merger Agreement (Charter Communications, Inc. /Mo/)
Information and Access. (a) Subject The Parties each shall (and shall cause its Subsidiaries to, and shall use its commercially reasonable efforts to cause, their respective Representatives to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Subsidiaries, directors, officers and shareholders or equity holders and such other matters as may be necessary or advisable in connection with the Company Circular or any other documentation to effect the expiration of all waiting periods under applicable Law and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of any Party or any of its Subsidiaries to or from any third party, including any Governmental Authority, in each case necessary or advisable in connection with the transactions contemplated by this Agreement and with respect to the information supplied by or on behalf of Purchaser, Parent, their respective Subsidiaries or their respective Representatives for inclusion or incorporation by reference in the Company Circular, none of such information shall, at the date of mailing to Company Shareholders and such other Persons required to receive the Company Circular by applicable Law, from at the date of this Agreement and continuing until the earlier time of the Effective Time and the termination Company Meeting or of this Agreement in accordance filing with the terms of Article VIICanadian Securities Regulators (as applicable), contain any Misrepresentation.
(ib) In addition to and without limiting the rights and obligations set forth in Section 5.5(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent Purchaser and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticethroughout the period prior to the Closing, to the its employees, officers, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent Purchaser and its Representatives all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by ParentPurchaser; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 5.5(c): (i) neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure would, or furnish such information and documents to the extent doing so would reasonably be expected to, (in the Company’s reasonable judgment) to result in (A) contravene any a violation of applicable Law (including Data Protection Laws) or Pandemic MeasureLaw, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets trade secrets in a manner that would result in any such Trade Secrets trade secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that (C) the breach of any contractual confidentiality obligations in each case of clauses any Contract with a third party (Aother than a Permitted Confidentiality Agreement), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in D) a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any waiver of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions protection of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened ProceedingsClaims or (E) the disclosure of any sensitive or personal information that would expose the Company or any of its Subsidiaries to the risk of obligation or liability, in any material respect; and (ii) in no event shall the work papers of the Company’s and its Subsidiaries’ independent accountants and auditors be accessible to Purchaser or its Representatives unless and until such accountants have provided a consent related thereto in form and substance reasonably acceptable to such auditors or independent accountants. All requests for such access or information made pursuant to this Section 5.5(b) shall be initially directed to the Person set forth in Section 5.5(b) of the Company Disclosure Letter, which Person may be replaced by the Company at any time by providing written notice to Purchaser, and any access granted in connection with a request made pursuant to this Section 5.5(b) shall be supervised by such Persons as may be designated by the Company from time to time and be conducted in such a manner so as not to unreasonably interfere with any of the businesses, properties or assets of the Company or any of its Subsidiaries.
(c) In the event that the Company objects to any request submitted pursuant to Section 5.5(b) on the basis of one or more of the matters set forth in clause (i) of Section 5.5(b), it must do so by providing Purchaser and/or its Representative, in reasonable detail, the Parties nature of what is being withheld and the reasons and reasonable support therefor, and prior to preventing such access or withholding such information or documents from Purchaser and its Representatives, the Company shall use commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not suffer from any of the impediments expressly set forth in clause (xi) understand of Section 5.5(b), including through the use of commercially reasonable efforts to take such actions and agree that they have implement appropriate and mutually agreeable measures, as promptly as practicable, to permit such access and the furnishing of such information and documents in a commonality manner to remove the basis for the objection, including by arrangement of interest appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual confidentiality obligations contemplated by clause (i)(C) of Section 5.5(b), obtaining a waiver with respect to or consent under such matters contractual confidentiality obligations (without conceding anything of monetary or economic value, or requiring the payment of any consideration, fees or expenses to such third-party counterparties).
(d) Without limiting the generality of the other provisions of this Section 5.5, the Parties, as each deems advisable and it is necessary, after consultation with their desirerespective outside legal counsel, intention may reasonably designate competitively sensitive information and mutual understanding that documents as “Outside Counsel Only Information.” Such information and documents shall only be provided to the sharing outside legal counsel of the Company, Purchaser or Parent (as the case may be), or subject to such material other similar restrictions mutually agreed to by the Company, Purchaser and information is not intended toParent, and shall notsubject to any amendment, waive supplement or diminish in other modification to the Confidentiality Agreement or additional confidentiality or joint defense agreement between or among the Parties; provided, however, that, subject to any way applicable Laws relating to the confidentiality exchange of information, the outside legal counsel receiving such material information and documents may prepare one or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in more reports summarizing the loss results of any analysis of any such privilege shared information and documents, and disclose such reports, other summaries or protection, including entering into a joint defense agreement or other arrangementsaggregated information derived from such shared information and documents to Representatives of such outside legal counsel’s client.
(be) All No access or information provided to any Party or any of its Representatives following the date of this Agreement, whether pursuant to this Section 5.5 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Section 5.1, Section 5.2, this Section 5.5 or otherwise in connection with this Agreement and the Transactions transactions contemplated by this Agreement shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its termsAuthority.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 2 contracts
Sources: Subscription Agreement (Cronos Group Inc.), Subscription Agreement (Altria Group, Inc.)
Information and Access. (a) Subject Prior to applicable LawClosing, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company Seller Parties shall (and shall cause its their Subsidiaries to), afford Parent subject to the Non-Disclosure Agreement, (a) permit the Purchaser and its Representatives to have reasonable accessaccess during normal business hours, at Parent’s sole cost and expense, in a manner so as not to unreasonably interfere with the operations normal operations, to all premises, properties, personnel, accountants, Transferred Books and Records, contracts and documents of the Company Transferred Companies or relating to the Transferred Assets and Assumed Liabilities; and (b) furnish to the Purchaser and its SubsidiariesRepresentatives all such information and data concerning the Combined Business as the Purchaser or its Representatives reasonably may request in connection with their review of information in accordance with subsection (a) of this Section 7.2, during normal business hours and upon reasonable advance notice, except to the employees, officers, agents, facilities, books and records extent that such information is subject to attorney-client privilege or furnishing any such information or data would violate any Legal Requirement or Order applicable to the Seller Parties or any of its Affiliates or by which any of Transferred Assets or the assets of the Company and its Subsidiaries and (ii) Transferred Companies are bound; provided, that the Company Seller Parties shall (and shall cause its Subsidiaries their controlled Affiliates to) furnish promptly use commercially reasonable efforts to Parent all other information remove any limitation or restriction on access to the Purchaser and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing Representatives. Notwithstanding anything in this Agreement Section 7.2, subject to Section 10.3, the Seller Parties shall require the Company not be required to permit access to or any of its Subsidiaries furnish Tax Returns, books, records, contracts, documents, information or data relating to provide access or to disclose information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect Taxes that do not exclusively relate to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementsCombined Business.
(b) All information In furtherance and documents disclosed or otherwise made available not in connection with this Agreement and the Transactions shall be governed by the terms and conditions limitation of the Confidentiality Agreementforegoing Section 7.2(a), at any time after the date hereof, the Clean Team AgreementPurchaser shall have the right, subject to the Parent Confidentiality Non-Disclosure Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating Legal Requirements, to appoint an individual who, in addition to exercising any of the rights granted to the exchange or sharing of information Purchaser pursuant to Section 7.2(a), shall also have the rights, and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement be subject to the contrarylimitations, set forth on Schedule 7.2(b). Each Seller Parent shall have the Confidentiality Agreementright, the Clean Team Agreementupon two (2) Business Days prior written notice to each other Party, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue to remove such individual if, in full force and effect until the earlier of such Seller Parent’s reasonable opinion, (i) such individual has become disruptive to the Closing Combined Business or the other business of the Partnership and the SET Companies or otherwise has violated the limitations set forth in Schedule 7.2(b) or (ii) twelve (12) months following termination such removal is required by Legal Requirements; provided that, in the event of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Timesuch a removal, the Company Purchaser shall provide Parent and its Representatives with have the information and access described in Section 5.7(c) right to appoint another individual to take the place of the Company Disclosure Scheduleremoved individual, subject to Legal Requirements.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Royal Bank of Scotland Group PLC), Purchase and Sale Agreement (Sempra Energy)
Information and Access. (a) Subject to applicable Law, from Purchaser acknowledges receipt of copies of the date materials set forth on Schedule 5.1 hereto. During the term of this Agreement and continuing until Agreement, Seller shall promptly provide Purchaser with such additional information concerning the earlier of Property as Purchaser may reasonably request, to the Effective Time and extent that the termination same is in Seller’s possession or control.
(b) During the term of this Agreement in accordance with the terms of Article VIIAgreement, Purchaser, personally or through its authorized agents or representatives, at its sole expense,, shall be entitled (i) the Company shall (to interview property managers, leasing agents, engineers, architects and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere other people involved with the operations development and/or ownership, operation, management and/or leasing of the Company Improvements, provided that Purchaser will not contact such parties directly, but will notify Seller of its desire to conduct any such interviews and its SubsidiariesSeller will arrange the same, (ii) to review the books and records relating to the Property, during normal business hours and upon reasonable advance at Seller’s offices, by providing Seller at least two (2) Business Days notice, and (iii) upon at least two (2) Business Days advance notice to Seller, to enter upon the Improvements during normal business hours. Without limiting the foregoing, Purchaser, personally or through its authorized agents or representatives, at its sole expense, shall have the right to make such investigations, including appraisals, engineering studies, soil tests, environmental studies, inquiry of governmental officials and underwriting analyses as Purchaser deems necessary or advisable, subject to the following limitations: (a) Purchaser shall give Seller written or telephonic notice at least two (2) Business Days before conducting any inspections on the Improvements, and a representative of Seller shall have the right to be present when Purchaser or its representatives conducts any such inspections; (b) neither Purchaser nor its representatives shall materially interfere with the use, occupancy or enjoyment of any Tenants, subtenants or other occupants of the Improvements or their respective employees, officerscontractors, agentscustomers or guests; (c) neither Purchaser nor its agents shall damage the Improvements or any portion thereof, facilitiesexcept for any immaterial damage caused by environmental, books and records geotechnical or similar tests, all of which shall promptly be repaired by Purchaser at Purchaser’s expense; (d) before entering upon the Company Property or Improvements, Purchaser and its Subsidiaries consultants and contractors shall furnish to Seller such evidence of general liability insurance coverage naming Seller (and its property manager and/or such other parties as Seller shall reasonably require) as an additional insured, in such amounts and insuring against such risks as Seller may reasonably request; and (iie) Purchaser, upon demand and without any prior notification required, shall indemnify, hold harmless and defend the Company shall Seller against all costs (including reasonable attorneys’ fees incurred by Seller for legal counsel of its choice and shall cause reasonably acceptable to Purchaser) and damage to the Property and Improvements caused by the activities of Purchaser or its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businessesagents under this paragraph, properties and assets and personnel as may reasonably be requested by Parentprovided; provided, however, that nothing in this Agreement such indemnity shall require not include any costs or damages caused by
(1) the Company acts of the Seller or any of its Subsidiaries to provide access agents or to disclose information if such access or disclosure would, or would reasonably be expected torepresentatives, (A2) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result claims of diminution in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination value of the Company, after consultation with outside legal counsel, expose Improvements as a consequence of the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any results revealed by such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), tests and inspections or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that 3) any pre-existing condition of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement Improvements or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental EntityLand. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement foregoing indemnification obligation shall continue in full force and effect until the earlier of (i) survive the Closing and (ii) twelve (12) months following or termination of this Agreement in accordance with its termsfor a period of five (5) years.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Agreement, Real Estate Purchase and Sale Agreement (Excelsior Lasalle Property Fund Inc)
Information and Access. (a) Subject From the date hereof until the Effective Time, but subject to Section 5.20, upon reasonable notice and subject to applicable Law, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall will (and shall will cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, and its and their officers, directors, employees and contractors to, and use reasonable best efforts to cause its other Representatives and Affiliates, to) afford to the officers, employees, counsel, bankers, accountants and other authorized Representatives of Parent reasonable access during normal business hours and upon reasonable advance noticeprior notice to all its properties, to the employees, officers, agents, facilitiespersonnel, books and records records, consistent with Parent’s rights and obligations under this Agreement and furnish promptly to such Persons such information concerning its business, properties, personnel and affairs as such Persons will from time to time reasonably request consistent with Parent’s rights and obligations under this Agreement. The Company shall be entitled to have a Representative present all times during any such inspection, and all such inspections granted pursuant to this Section 5.5 shall be subject to the Company’s reasonable security measures. Subject to the terms of this Agreement, the Company shall maintain and exercise complete control and supervision over the Company and its Subsidiaries and Subsidiaries.
(iib) From the Company shall (and shall cause its Subsidiaries to) furnish promptly date hereof until the Effective Time, subject to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its Subsidiaries to provide access or to disclose information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic MeasureParent shall act reasonably and in good faith in responding to such requests for information as the Company will from time to time reasonably make, result in such loss of legal privilege or protection, or Contract, expose to the extent reasonably necessary to enable the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To consummate the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise transactions contemplated hereby in accordance with the terms herewith and conditions of consistent with the Company’s rights and obligations under this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance No investigation or information provided pursuant to this Section 5.5 shall affect or otherwise obviate or diminish any representations or warranties of and without limiting any Party or conditions to the foregoing, from the date obligations of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Scheduleany Party.
(d) For the avoidance Each of doubt, the Company and its Subsidiaries shall only be required to provide Parent will hold all information furnished by or behalf of the other Party or its Representatives access or information pursuant to this Section 5.7 5.5 in connection confidence in accordance with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this provisions of that certain Mutual Non-Disclosure Agreement, following dated as of December 20, 2017, as amended by the initiation Amendment to Mutual Non-Disclosure Agreement, dated as of November 30, 2018 (the “Confidentiality Agreement”), by and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such ProceedingParent.
Appears in 2 contracts
Sources: Merger Agreement (Liberty Expedia Holdings, Inc.), Merger Agreement (Expedia Group, Inc.)
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall use its reasonable best efforts to applicable Lawcause its and their respective Representatives to), from upon the date of this Agreement reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Representatives and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, such other matters as may be necessary or advisable (i) in connection with the Proxy Statement, (ii) to effect the expiration of all waiting periods under applicable Antitrust Laws and (iii) in connection with all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Subsidiaries to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the transactions contemplated by this Agreement and, with respect to the information supplied by or on behalf of Parent, its Subsidiaries or its or their respective Representatives for inclusion in or incorporation by reference into the Proxy Statement, Parent acknowledges and agrees that such information will be correct and complete in all material respects at the time so supplied.
(b) In addition to and without limiting the rights and obligations set forth in Section 7.9(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with access during the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeInterim Period, to the employees, officers, Company Employees and the Company’s agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing in this Agreement shall require neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure furnish such information or documents to the extent doing so would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination judgment of the Company, after consultation with taking into account the advice of the Company’s outside legal counsel, expose result in (A) a violation of applicable Law, including COVID-19 Measures (provided, that the Company or any of shall, and shall cause its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitiveto, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and provide such access as may can be mutually agreed, to make available, the applicable information or documents to Parent provided in a manner that would not violate without violating such COVID-19 Measures or other applicable Law), Pandemic Measure, result (B) the breach of any contractual confidentiality obligations in such loss any Contract with a third party entered into prior to the date of legal privilege this Agreement or protection, following the date of this Agreement in compliance with Section 7.1 or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law Section 7.2 (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To (C) waiving the extent that protection of any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, Proceedings or (D) competitive harm to the Parties (x) understand and agree that they have a commonality Company or any of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementsSubsidiaries.
(bc) All No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 7.9 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Sections 7.3 or 7.7, this Section 7.9 or otherwise in connection with this Agreement and the Transactions transactions contemplated by this Agreement shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws Law relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For Following the avoidance of doubtdate hereof, the Company shall use its reasonable best efforts to move documents from any “clean rooms” established in connection with the virtual data rooms hosted by or on behalf of the Company to the unrestricted areas of such virtual data rooms, in a manner consistent with its process for moving such documents from clean rooms to unrestricted areas prior to the execution of this Agreement and its Subsidiaries in accordance with the Clean Team Agreement; provided, that (i) the Company shall only not be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 move any such documents if doing so would, in connection the Company’s reasonable judgment and consultation with this Agreement outside legal counsel, violate Antitrust Law and the Transactions.
(eii) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates be permitted to provide access or to disclose redact competitively sensitive information from such documents in connection accordance with any such Proceedingthe Clean Team Agreement.
Appears in 1 contract
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its respective Subsidiaries to, and shall instruct its and their respective Representatives to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the preparation and filing of the Proxy Statement and any information or documentation to effect the expiration of all waiting periods under applicable LawAntitrust Laws and, if applicable, any contractual waiting periods under any timing agreements with a Governmental Entity applicable to the consummation of the Transactions, and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Subsidiaries to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the date Transactions.
(b) In addition to, and without limiting, the rights and obligations set forth in Section 7.8(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives, during normal business hours, during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations abandonment of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeTransactions pursuant to Article IX, to the employees, officersCompany Employees, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent and its Representatives all other information and documents concerning or regarding its businesses, properties and assets properties, assets, liabilities and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 7.8(c): (i) neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure furnish such information or documents to the extent doing so would, or would in the Company’s reasonable judgment, reasonably be expected to, to result in (A) contravene any a violation of applicable Law (including Data Protection Laws) or Pandemic MeasureLaw, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any material Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or ) the breach of any contractual confidentiality obligations in any Contract with a third party (E), other than a Permitted Confidentiality Agreement) entered into prior to the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions date of this Agreement, (D) waiving the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an protection of any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable legal privilege or protection concerning pending or threatened Proceedings, Proceedings or (E) the Parties disclosure of any Personal Information that would expose the Company or any of its Subsidiaries to the risk of material liability; and (xii) understand in no event shall the work papers of the Company’s and agree that they its Subsidiaries’ independent accountants and auditors be accessible to Parent or any of its Representatives unless and until such accountants and auditors have provided a commonality of interest with respect consent related thereto in form and substance reasonably acceptable to such matters and it is their desire, intention and mutual understanding auditors or independent accountants; provided that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) Company shall use its reasonable best efforts to ensure make appropriate substitute arrangements to permit reasonable disclosure that disclosure thereof does not result suffer from any of the impediments expressly set forth in clause (i) of this Section 7.8(b), including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the loss contractual confidentiality obligations contemplated by clause (i)(C) of this Section 7.8(b), obtaining a waiver with respect to or consent under such contractual confidentiality obligations (without conceding anything of non-de minimis monetary or economic value, or requiring the payment of any non-de minimis consideration, fees or expenses to such third-party counterparties). All requests for such access or information made pursuant to this Section 7.8(b) shall be initially directed to the Person set forth in Section 7.8(b) of the Company Disclosure Letter, which Person may be replaced by the Company at any time by providing written notice to Parent, and any access granted in connection with a request made pursuant to this Section 7.8(b) shall be supervised by such Persons and be conducted in such a manner so as not to unreasonably interfere with any of the businesses, properties or assets of the Company or any of its Subsidiaries.
(c) Without limiting the generality of the other provisions of this Section 7.8, the Company and Parent, as each deems advisable and necessary, after consultation with their respective outside legal counsel, may reasonably designate competitively sensitive information and documents (including those that relate to valuation of the Company or Parent (as the case may be)) as “Outside Counsel Only Information.” Such information and documents shall only be provided to the outside legal counsel of the Company or Parent (as the case may be), or subject to such other similar restrictions mutually agreed to by the Company and Parent, and subject to any amendment, supplement or other modification to the Confidentiality Agreement or additional confidentiality or joint defense agreement between or among the Company and Parent; provided, however, that, subject to any applicable Laws relating to the exchange of information, the outside legal counsel receiving such information and documents may prepare one or more reports summarizing the results of any analysis of any such privilege shared information and documents, and disclose such reports, other summaries or protection, including entering into a joint defense agreement or other arrangementsaggregated information derived from such shared information and documents to Representatives of such outside legal counsel’s client.
(bd) All No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 7.8 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties or be deemed to constitute any representation or warranty of the Company unless, and then solely to the extent that, any such materials or information is the subject of any express representation or warranty set forth in Article IV or Article V and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Section 7.5, Section 7.6, this Section 7.8 or otherwise in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Information and Access. (a) Subject to applicable LawUpon reasonable advance notice, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall (shall, and shall cause its Subsidiaries to), afford Parent to the officers, directors, employees, accountants, counsel, investment bankers, financial advisors and its Representatives reasonable accessother representatives (collectively, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations "Representatives") of the Company and its Subsidiaries, during normal business hours and upon HCC Lenders reasonable advance noticeaccess throughout the period prior to the Closing Date, to the all of its employees, officers, agents, facilitiesaccountants, books properties, books, contracts, commitments and records of (including, but not limited to, Tax Returns) and, during such period, the Company and its Subsidiaries and (ii) the Company shall (shall, and shall cause its Subsidiaries to) , furnish promptly to Parent all the HCC Lenders and their Representatives, (i) access to each report, schedule and other information and documents concerning document filed or regarding its businesses, properties and assets and personnel as may reasonably be requested received by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its the Company's Subsidiaries pursuant to provide the requirements of federal or state securities laws or filed with or sent to the SEC or any other federal or state regulatory agency or commission and (ii) access or to disclose all information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of concerning the Company, after consultation the Company's Subsidiaries and their respective directors, officers, stockholders, operations, facilities, properties and such other matters as may be reasonably requested by the HCC Lenders or their Representatives in connection with outside legal counselany filings, expose applications or approvals required or contemplated by this Agreement or for any other reason related to the Transactions; provided, that all such access shall be coordinated through the Company or its designated representatives, in accordance with such reasonable procedures as the Company may establish. During any visit to the business or property sites of the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company's Subsidiaries, its Subsidiaries or the HCC Lenders shall, and shall cause their respective businesses if the Transactions are not consummatedRepresentatives accessing such properties to, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets conduct itself in a manner that would result in any is consistent with such Trade Secrets no longer being protected reasonable procedures as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), are established by the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose be reasonably expected to interfere with the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any operation of the information or documents furnished or otherwise made available Company's business. The Company acknowledges that time is of the essence with respect to its compliance with its covenants in this Section 5.2. No investigation pursuant to this Section 5.7 5.2 shall affect any representation, warranty or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions covenant of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue Company in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or any condition on the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) obligations of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary HCC Lenders in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Sources: Master Recapitalization Agreement (Crown Media Holdings Inc)
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall direct its and their respective Representatives to), upon the reasonable request by the other, use reasonable best efforts to furnish to the other, as promptly as practicable, all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the documentation to effect the expiration of all waiting periods under applicable LawLaws and, if applicable, any contractual waiting periods under any timing agreements with a Governmental Entity applicable to the consummation of the transactions contemplated by this Agreement, and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Affiliates to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the transactions contemplated by this Agreement.
(b) In addition to and without limiting the rights and obligations set forth in Section 6.06(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of pursuant to Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeVIII, to the its employees, officers, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 6.06(c), neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure wouldfurnish such information or documents to the extent (i) such information relates to any Acquisition Proposal or similar transaction, before or would reasonably be expected toafter the date hereof, including the applicable portions of the minutes of the meetings of the Company Board or any committee thereof (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (A) contravene the transactions contemplated by this Agreement or any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in similar transaction involving the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination sale of the Company, after or a material portion of its assets, to, or combination of the Company with, any other Person or (B) any Acquisition Proposal or (ii) doing so would, in the Company’s reasonable determination following consultation with outside legal counsel, expose the Company or any of its Subsidiaries be reasonably likely to risk of material liability with respect to the result in (A) a violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummatedapplicable Law, (DB) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any material Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), ) the breach of any contractual confidentiality obligations in any Contract with a third party entered into prior to the date of this Agreement or following the date of this Agreement in compliance with Section 6.01 and Section 6.02 or (E), D) the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss waiver of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, in any material respect. All requests for such access or information made pursuant to this Section 6.06(b) shall be initially directed to the Parties Person set forth in Section 6.06(b) of the Company Disclosure Schedule, which Person may be replaced by the Company at any time by providing written notice to Parent.
(xc) understand In the event that the Company objects to any request submitted pursuant to Section 6.06(b) on the basis of one or more of the matters set forth in clauses (i) or (ii) of Section 6.06(b), it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and agree that they have the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of commercially reasonable efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a commonality manner to remove the basis for the objection, including by arrangement of interest appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to such matters and it is their desirethe contractual confidentiality obligations contemplated by clause (ii)(C) of Section 6.06(b), intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive obtaining a waiver with respect to or diminish in any way the confidentiality of such material or information or its continued protection consent under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementscontractual confidentiality obligations.
(bd) All No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 6.06 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to this Section 6.06 or otherwise in connection with this Agreement and the Transactions transactions contemplated by this Agreement shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Information and Access. (a) Subject to applicable LawLaw and the other provisions of this Section 6.10, the Company and Parent each shall (and shall cause its Subsidiaries to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself and such other matters as may be necessary or reasonably advisable in connection with the Proxy Statement and any information or documentation reasonably requested to effect the expiration of all waiting periods under applicable Antitrust Law and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Subsidiaries to or from any third party, including any Governmental Entity, in each case necessary or reasonably advisable in connection with the transactions contemplated by this Agreement and, with respect to the information supplied by or on behalf of Parent, its Subsidiaries or its or their respective Representatives for inclusion in or incorporation by reference into the Proxy Statement, Parent acknowledges and agrees that such information shall be correct and complete in all material respects at the time so supplied.
(b) In addition to and without limiting the rights and obligations set forth in Section 6.10(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access during normal business hours following reasonable advance notice from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of pursuant to Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeVIII, to the employees, officers, Company Employees and the Company’s agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) use commercially reasonable efforts to furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent, for the purposes of consummating the transactions contemplated by this Agreement, or integration or transition planning; provided, however, that nothing neither the Company nor any of its Subsidiaries shall be required to provide (in this Agreement shall require the case of Section 6.10(a) or 6.10(b)) such access or furnish such information or documents to the extent doing so would, in the reasonable opinion of the Company’s outside legal counsel, result in (A) a violation of applicable Law, (B) the disclosure of any trade secrets of any third parties or competitively sensitive information of third parties, other than in accordance with customary “clean room” or other similar procedures designed to limit the disclosure of competitively sensitive information, information concerning the valuation of the Company or any of its Subsidiaries or a breach of any contractual confidentiality obligations in any Contract with a third party entered into prior to provide access the date of this Agreement or to disclose information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result following the date of this Agreement in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections compliance with Section 6.1 and confidentiality protections) or other applicable legal privilege or protectionSection 6.3, (C) in waiving the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation protection of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, Proceedings or (D) the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that unauthorized disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementsPersonal Information that would expose the Company to the risk of liability.
(bc) All Nothing in this Section 6.10 shall require the Company to provide any information regarding any Acquisition Proposal or any Company Board materials relating to the transactions contemplated by this Agreement or any Acquisition Proposal, the provision of which shall be governed by Section 6.3.
(d) No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 6.10 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Sections 6.4, Section 6.8, this Section 6.10 or otherwise in connection with this Agreement and the Transactions transactions contemplated by this Agreement shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws Law relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Information and Access. (a) Subject to applicable Law, from From the date of this Agreement and continuing until the earlier of the Effective Time Time, upon reasonable notice and the termination of this Agreement in accordance with the terms of Article VIIsubject to applicable Law, (i) the Company shall (will, and shall will cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, and its and their officers, directors, employees, contractors, Representatives and Affiliates to, afford to the officers, employees, counsel, bankers, accountants and other authorized Representatives of Parent and the Parent Special Committee reasonable access during normal business hours and upon reasonable advance noticeprior notice to all its properties, to the employees, officers, agents, facilitiespersonnel, books and records for purposes of satisfying Parent’s rights and obligations under this Agreement and furnish promptly to such Persons such information concerning its business, properties, personnel and affairs as such Persons will from time to time reasonably request for purposes of satisfying Parent’s rights and obligations under this Agreement.
(b) From the date of this Agreement until the Effective Time, upon reasonable notice and subject to applicable Law, Parent will, and will cause its Subsidiaries, and its and their officers, directors, employees, contractors, Representatives and Affiliates to, afford to the officers, employees, counsel, bankers, accountants and other authorized Representatives of the Company and its Subsidiaries and (ii) the Company shall (Special Committee reasonable access during normal business hours and shall cause upon reasonable prior notice to all its Subsidiaries to) properties, personnel, books and records for purposes of satisfying the Company’s rights and obligations under this Agreement and furnish promptly to such Persons such information concerning its business, properties, personnel and affairs as such Persons will from time to time reasonably request for purposes of satisfying the Company’s rights and obligations under this Agreement.
(c) No investigation or information provided pursuant to this Section 5.8 shall affect or otherwise obviate or diminish any representations or warranties of any Party or conditions to the obligations of any Party.
(d) Each of the Company and Parent will hold all information furnished by or behalf of the other information Party or its Representatives pursuant to this Section 5.8 in confidence in accordance with the provisions of that certain Mutual Non-Disclosure Agreement, dated as of May 18, 2020 (the “Confidentiality Agreement”), by and documents concerning between the Company and Parent.
(e) Nothing in this Section 5.8 or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing in any other part of this Agreement shall require the Company or Parent, as applicable, to permit any of its Subsidiaries to provide access inspection of, or to disclose disclose:
(i) any information if such access concerning Alternative Company Transaction Proposals or disclosure wouldAlternative Parent Transaction Proposals, which shall be governed by Section 5.3 and Section 5.4 (in the case of Alternative Company Transaction Proposals) and Section 5.5 and Section 5.6 (in the case of Alternative Parent Transaction Proposals);
(ii) any information regarding the deliberations of the Company Board, Company Special Committee, Parent Board or Parent Special Committee, as applicable, with respect to the transactions contemplated hereby or any similar transaction or transactions with any other Person, the entry into this Agreement, or would reasonably be expected toany materials provided to the Company Board, Company Special Committee, Parent Board, or Parent Special Committee, as applicable, in connection therewith;
(iii) materials prepared by the Company Special Committee’s or Parent Special Committee’s, as applicable, financial or legal advisors; or
(iv) materials the disclosure of which (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise would jeopardize any attorney-client or other privilege or protection (including attorney-client privilegeB) would contravene any applicable Law, attorney work-product protections fiduciary duty or confidentiality obligation, provided that Parent and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use commercially reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and take such actions as may be mutually agreed, reasonably required to make available, allow such disclosure to be provided to the applicable information other Party or documents to Parent in its Representatives without waiving privilege or causing a manner that would not violate violation of applicable Law, Pandemic Measure, result in such loss of legal privilege fiduciary duty or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementsobligation.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Sources: Merger Agreement (Gci Liberty, Inc.)
Information and Access. (a) Subject to applicable Law, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice, to the employees, officers, agents, facilities, books and records of the Company and its Subsidiaries and (ii) the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its Subsidiaries to provide access or to disclose information if such access or disclosure would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from From the date of this Agreement until the earlier of the termination of this Agreement and the Closing Date upon reasonable prior written request, subject to Section 6.2(b), and except as determined by Seller in good faith to (x) be appropriate to ensure compliance with Law, (y) reasonably be expected to violate the attorney-client privilege or other contractual confidentiality obligations or (z) without limiting the Effective Timeforegoing (but solely in the case of access prior to the Closing), reasonably be expected to cause competitive harm to the Business if the Transactions are not consummated, Seller shall, and shall cause each Business Affiliate to, afford each Designated Representative reasonable access to the offices, personnel, properties, books and records of the Business, in each case at the sole cost and expense of Buyer and solely for the purposes of preparing for and implementing the post-Closing ownership of the Acquired Assets and operation of the Business and the consummation of the Transactions; provided, however, that (i) all requests by Buyer or its Designated Representative for access shall be directed to ▇▇▇▇▇ ▇▇▇▇▇▇▇ or Will ▇. ▇▇▇▇▇ ▇▇. and such access shall be conducted during normal business hours under the supervision of Seller’s personnel and in such a manner so as not to interfere with the normal operations of Seller and the Business Affiliates; (ii) if the parties are in an adversarial relationship in litigation or arbitration, the Company furnishing of information, documents or records in accordance with this Section 6.2(a) shall provide Parent be subject to applicable rules relating to discovery; and its Representatives with (iii) any access to Seller’s and the information Business Affiliates’ offices and access described properties (A) shall be subject to (1) any COVID-19 Measures or COVID-19 Responses, (2) Seller’s and the Business Affiliates’ reasonable security and insurance measures, and (3) any restrictions applicable to the offices properties, including the terms of any leases, (B) may be limited (in Section 5.7(cSeller’s sole discretion) to visual inspection only, and (C) shall not include the right to conduct any environmental testing, sampling or intrusive investigations of the Company Disclosure Scheduleany kind.
(db) For Notwithstanding anything in this Agreement to the avoidance contrary, Seller and the Business Affiliates may take such action as they reasonably deem appropriate to separate or redact information unrelated to the Business or the Acquired Assets from documents and other materials made available or delivered pursuant to Section 6.2(a). Notwithstanding anything in this Agreement to the contrary, prior to the Closing, Seller shall not be required to, or to cause any Business Affiliate to, disclose (or to provide access to any of doubtits offices, properties, books or records to the Company and its Subsidiaries extent that such access would reasonably be expected to result in the disclosure of) any confidential information to the extent that disclosure would reasonably be expected to violate any Laws, nor shall only Seller be required to provide Parent permit Buyer or its Affiliates or Designated Representatives to have access to or to copy or remove from the offices or properties of Seller or any of the Business Affiliates any documents, drawings or other materials that would reasonably be excepted to reveal any such confidential information.
(c) Buyer acknowledges that the information pursuant provided to this Section 5.7 Buyer and its representatives prior to the Closing in connection with this Agreement (including this Section 6.2) and the Transactions.
(e) Notwithstanding anything Transactions are subject to the contrary in this terms of the Nondisclosure Agreement, following the initiation terms of which are incorporated herein by reference and, notwithstanding anything herein to the contrary, shall survive the Closing in accordance with the terms thereof; provided, however, that Buyer’s obligations thereunder shall terminate as of the Closing solely in respect of that portion of the Confidential Information (as defined in the Nondisclosure Agreement) exclusively related to the Business or the Acquired Assets. If this Agreement is terminated prior to the Closing, the Nondisclosure Agreement and during the pendency provisions of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 6.2(c) shall not require either Party or its respective Affiliates to provide access or to disclose information nonetheless continue in connection with any such Proceedingfull force and effect.
Appears in 1 contract
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its and their respective Representatives to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the Proxy Statement, any information or documentation to effect the expiration of all waiting periods under applicable LawAntitrust Laws and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Subsidiaries to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the date of transactions contemplated by this Agreement and, with respect to the information supplied by or on behalf of Parent, its Subsidiaries or its or their respective Representatives for inclusion in or incorporation by reference into the Proxy Statement, Parent acknowledges and continuing until agrees that such information will be correct and complete in all material respects at the earlier of time so supplied.
(b) In addition to and without limiting the Effective Time rights and obligations set forth in Section 7.9(a), during the termination of this Agreement in accordance with the terms of Article VII, (i) Interim Period the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, access during normal business hours and upon reasonable advance noticehours, to the employees, officers, Company Employees and the Company’s agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing in this Agreement shall require neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure furnish such information or documents to the extent doing so would, or would reasonably be expected to, (A) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination opinion of the Company, after consultation with ’s outside legal counsel, expose result in (A) a violation of applicable Law, including COVID-19 Measures (provided, that the Company or any of shall, and shall cause its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitiveto, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and provide such access as may can be mutually agreed, to make available, the applicable information or documents to Parent provided in a manner that would not violate without violating such COVID-19 Measures or other applicable Law), Pandemic Measure, result (B) the breach of any contractual confidentiality obligations in such loss any Contract with a third party entered into prior to the date of legal privilege this Agreement or protectionfollowing the date of this Agreement in compliance with Section 7.1 and Section 7.2, or Contract, expose (C) waiving the Company to risk protection of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(bc) All No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 7.9 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Sections 7.3 or 7.7, this Section 7.9 or otherwise in connection with this Agreement and the Transactions transactions contemplated by this Agreement shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws Law relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Sources: Merger Agreement (LHC Group, Inc)
Information and Access. (a) Subject The Company, Public Parent and Parent each shall (and shall cause its respective Subsidiaries to, and shall instruct its and their respective Representatives to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the preparation and filing of the Proxy Statement/Prospectus and any information or documentation to effect the expiration of all waiting periods under applicable LawAntitrust Laws and, if applicable, any contractual waiting periods under any timing agreements with a Governmental Entity applicable to the consummation of the Transactions, and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Public Parent, Parent, the Company or any of their respective Subsidiaries to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the date Transactions.
(b) In addition to and without limiting the rights and obligations set forth in Section 8.9(a), Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Public Parent, Parent and their respective Representatives, during normal business hours, during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations abandonment of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeTransactions pursuant to Article X, to the employees, officersCompany Employees, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Public Parent, Parent and their respective Representatives all other information and documents concerning or regarding its businesses, properties and assets properties, assets, liabilities and personnel as may reasonably be requested by or on behalf of Public Parent or Parent; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 8.9(c): (i) neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure furnish such information or documents to the extent doing so would, or would in the Company’s reasonable judgment, reasonably be expected to, to result in (A) contravene any a violation of applicable Law (including Data Protection Laws) or Pandemic MeasureLaw, (B) result in the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any material Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or ) the breach of any contractual confidentiality obligations in any Contract with a third party (E), other than a Permitted Confidentiality Agreement) entered into prior to the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions date of this Agreement, (D) waiving the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an protection of any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable legal privilege or protection concerning pending or threatened ProceedingsProceedings or (E) the disclosure of any Personal Information that would expose the Company or any of its Subsidiaries to the risk of material liability; and (ii) in no event shall the work papers of the Company’s and its Subsidiaries’ independent accountants and auditors be accessible to Public Parent, the Parties (x) understand Parent or any of their respective Representatives unless and agree that they until such accountants and auditors have provided a commonality of interest with respect consent related thereto in form and substance reasonably acceptable to such matters and it is their desire, intention and mutual understanding auditors or independent accountants; provided that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) Company shall use its reasonable best efforts to ensure make appropriate substitute arrangements to permit reasonable disclosure that disclosure thereof does not result suffer from any of the impediments expressly set forth in clause (i) of this Section 8.9(b), including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the loss contractual confidentiality obligations contemplated by clause (i)(C) of this Section 8.9(b), obtaining a waiver with respect to or consent under such contractual confidentiality obligations (without conceding anything of non-de minimis monetary or economic value, or requiring the payment of any non-de minimis consideration, fees or expenses to such third-party counterparties). All requests for such access or information made pursuant to this Section 8.9(b) shall be initially directed to the Person set forth in Section 8.9(b) of the Company Disclosure Schedule, which Person may be replaced by the Company at any time by providing written notice to Public Parent and Parent, and any access granted in connection with a request made pursuant to this Section 8.9(b) shall be supervised by such Persons and be conducted in such a manner so as not to unreasonably interfere with any of the businesses, properties or assets of the Company or any of its Subsidiaries.
(c) Without limiting the generality of the other provisions of this Section 8.9, the Company, Public Parent and Parent, as each deems advisable and necessary, after consultation with their respective outside legal counsel, may reasonably designate competitively sensitive information and documents (including those that relate to valuation of the Company or Public Parent or Parent (as the case may be)) as “Outside Counsel Only Information.” Such information and documents shall only be provided to the outside legal counsel of the Company, Public Parent or Parent (as the case may be), or subject to such other similar restrictions mutually agreed to by the Company, Public Parent and Parent, and subject to any amendment, supplement or other modification to the Confidentiality Agreement or additional confidentiality or joint defense agreement between or among the Company, Public Parent and Parent; provided, however, that, subject to any applicable Laws relating to the exchange of information, the outside legal counsel receiving such information and documents may prepare one or more reports summarizing the results of any analysis of any such privilege shared information and documents, and disclose such reports, other summaries or protection, including entering into a joint defense agreement or other arrangementsaggregated information derived from such shared information and documents to Representatives of such outside legal counsel’s client.
(bd) All No access or information provided to Public Parent, Parent or any of their respective Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 8.9 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties or be deemed to constitute any representation or warranty of the Company unless, and then solely to the extent that, any such materials or information is the subject of any express representation or warranty set forth in Article IV or Article VI and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to Section 8.6, Section 8.7, this Section 8.9 or otherwise in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall cause its and their respective Representatives to), upon the reasonable request by the other, furnish to the other, as promptly as practicable, all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the Offer Documents and the Schedule 14D-9, as applicable Lawand any information or documentation to effect the expiration of all waiting periods under applicable Laws and, if applicable, any contractual waiting periods under any timing agreements with a Governmental Entity applicable to the consummation of the transactions contemplated by this Agreement, and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Affiliates to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the transactions contemplated by this Agreement and, with respect to the information supplied in writing by or on behalf of Parent, the Company, their Subsidiaries or its or their respective Representatives for inclusion in or incorporation by reference into the Offer Documents and the Schedule 14D-9, as applicable, Parent and the Company, respectively, acknowledge and agree that such information will be correct and complete in all material respects at the time so supplied.
(b) In addition to and without limiting the rights and obligations set forth in Section 6.06(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of pursuant to Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeVIII, to the its employees, officers, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 6.06(c), neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure would, furnish such information or would reasonably be expected to, documents to the extent (i) such information relates to the applicable portions of the minutes of the meetings of the Company Board or any committee thereof (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (A) contravene the transactions contemplated by this Agreement or any applicable Law (including Data Protection Laws) similar transaction involving the sale of the Company, or Pandemic Measurea material portion of its assets, to, or combination of the Company with, any other Person, (B) result in the waiver of any Acquisition Proposal or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) any Intervening Event or (ii) doing so would, in the reasonable determination opinion of the Company, after consultation with ’s outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the result in (A) a violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummatedapplicable Law, (DB) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any material Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), ) the breach of any contractual confidentiality obligations in any Contract with a third party entered into prior to the date of this Agreement or following the date of this Agreement in compliance with Section 6.01 and Section 6.02 or (E), D) waive the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss protection of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, in any material respect. All requests for such access or information made pursuant to this Section 6.06(b) shall be initially directed to the Parties Person set forth in Section 6.06(b) of the Company Disclosure Schedule, which Person may be replaced by the Company at any time by providing written notice to Parent.
(xc) understand In the event that the Company objects to any request submitted pursuant to Section 6.06(b) on the basis of one or more of the matters set forth in clauses (i) or (ii) of Section 6.06(b), it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and agree that they have the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of commercially reasonable efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a commonality manner to remove the basis for the objection, including by arrangement of interest appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to such matters and it is their desirethe contractual confidentiality obligations contemplated by clause (ii)(C) of Section 6.06(b), intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive obtaining a waiver with respect to or diminish in any way the confidentiality of such material or information or its continued protection consent under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementscontractual confidentiality obligations.
(bd) All No access or information provided to Parent or any of its Representatives or to the Company or any of its Representatives following the date of this Agreement, whether pursuant to this Section 6.06 or otherwise, shall affect or be deemed to affect, modify or waive the representations and warranties of the Parties set forth in this Agreement and, for the avoidance of doubt, all information and documents disclosed or otherwise made available pursuant to this Section 6.06 or otherwise in connection with this Agreement and the Transactions transactions contemplated by this Agreement shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Information and Access. (a) Subject to applicable LawThe Company will, from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, (i) the Company shall (and shall will cause its Subsidiaries to), afford Parent provide to Parent, Aquarion MergerCo and its their respective Representatives reasonable accessaccess at such times and locations as are mutually agreed upon by the Parties to all the Assets, at Parent’s sole cost and expenseto the books, in a manner as not to unreasonably interfere with the operations Contracts, personnel, documents, records, and files of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticewill furnish to Parent or Aquarion MergerCo copies of documents, records and financial information with respect to the employees, officers, agents, facilities, books Company’s and its Subsidiaries’ business as Parent or Aquarion MergerCo may reasonably request. Said access shall specifically include access to (i) all personnel records of the Company and its Subsidiaries; (ii) all Contracts of the Company and its Subsidiaries; (iii) all files and records of the Company and its Subsidiaries Subsidiaries; and (iiiv) the System. Any such access shall be (a) subject to all of the standard protocols and procedures of the Company, (b) subject to any additional procedures required by any landlord, if applicable and (c) in such a manner as does not unreasonably interfere with the normal operations of the Company. Notwithstanding anything herein to the contrary, no such access or examination shall be permitted to the extent that it would require the Company shall or its Subsidiaries to disclose information subject to attorney-client privilege or attorney work- product privilege (provided that the Company shall, and shall cause its Subsidiaries to) furnish promptly , use its and their commercially reasonable efforts to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its Subsidiaries to provide access or to disclose information if allow for such access or disclosure would, (or would reasonably be expected to, (Aas much of it as possible) contravene any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) in a manner that does not result in the waiver a loss of or otherwise jeopardize any attorney-client privilege or protection protections), conflict with any third-party confidentiality obligations to which the Company or its Subsidiaries is bound as of the date hereof (including attorney-client privilegeprovided that the Company shall, attorney work-product protections and confidentiality protections) shall cause its Subsidiaries to, use its and their commercially reasonable efforts to obtain the required consent of such third party to such access or other applicable legal privilege or protectiondisclosure), (C) or, in the reasonable determination opinion of external legal counsel of the Company, after consultation with outside legal counsel, expose violate any applicable Law. If any material is withheld by the Company or any of its Subsidiaries to risk of material liability with respect pursuant to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E)immediately preceding sentence, the Company shall, and shall cause its Subsidiaries to, inform Parent shall use reasonable best efforts as to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make availablethe general nature of what is being withheld. Without limiting the generality of the foregoing, the applicable information or documents Company shall, and shall cause its Subsidiaries to, within five (5) Business Days of request by Parent therefor, provide to Parent the information described in Rule 14a- 7(a)(2)(ii) under the Exchange Act and any information to which a manner that holder of Company Common Stock or other equity interest in any Subsidiary of the Company would not violate be entitled under Sections 33-946 and 33-704 of the CBCA or other applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the All information or documents furnished or otherwise made available exchanged pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may 5.3 shall be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality terms of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementsConfidentiality Agreement.
(b) All information The Company shall prepare and documents disclosed or otherwise made furnish to Parent, promptly after becoming available and in connection with this Agreement and the Transactions shall be governed by the terms and conditions any event within thirty (30) days of the Confidentiality Agreementend of each calendar month, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision unaudited financial statements of the Confidentiality Agreement, Company (the Clean Team Agreement, “Update Financial Statements”) for each month following the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) Most Recent Balance Sheet Date through the Closing and Date. Not later than five (ii5) twelve (12) months Business Days following termination receipt of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, any management letter or other similar communication from the date of this Agreement until the earlier of termination of this Agreement Company’s independent certified accounting firm or the Effective Timeother independent auditors, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) deliver a copy of the Company Disclosure Schedulesuch letter or communication to Parent.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.
Appears in 1 contract
Sources: Agreement and Plan of Merger
Information and Access. (a) Subject In order to applicable Lawenable the provision of the Services by Provider, from Recipient agrees that it shall provide to Provider’s and its Affiliates’ employees and any third-party service providers or subcontractors who provide Services, at no cost to Provider, access to and use of the date necessary facilities, assets, employees and books and records of Recipient and its Affiliates, in all cases to the extent necessary for Provider to fulfill its obligations under this Agreement (all such access, use and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance support, “Support”). In connection with the terms of Article VIIproviding such access, (i) the Company shall (Provider shall, and shall cause its Subsidiaries to), afford Parent Affiliates and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company their personnel and its Subsidiaries, during normal business hours and upon reasonable advance notice, to the employees, officers, agents, facilities, books and records of the Company and its Subsidiaries and (ii) the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by Parent; provided, however, that nothing in this Agreement shall require the Company or any of its Subsidiaries to provide access or to disclose information if such access or disclosure would, or would reasonably be expected representatives to, (A) contravene any abide by all applicable Law (including Data Protection Laws) or Pandemic Measurepolices, (B) result in the waiver rules and procedures of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangementswhich Recipient has notified Provider.
(b) All information In furtherance of and documents disclosed not in limitation of the foregoing, as of the date hereof, except as expressly set forth herein or otherwise made available required in connection with this Agreement the performance of or delivery of a Service, Buyer and its Affiliates (including the Transactions Group Companies) shall cease to use and shall have no further access to, and Seller and its Affiliates shall have no obligation to otherwise provide, the owned or licensed computer software, networks, hardware or technology of Seller and its Affiliates and shall have no access to, and Seller and its Affiliates shall have no obligation to otherwise provide, computer-based resources that require a password or are available on a secured access basis. From and after the date hereof, Buyer and its Affiliates (including the Group Companies) shall cause all of their personnel having access to the computer software, networks, hardware, technology or computer based resources of Seller or its Affiliates in connection with the performance, receipt or delivery of a Service to comply with all security guidelines (including physical security, network access, internet security, confidentiality and personal data security guidelines) of Seller and its Affiliates (of which Seller or its Affiliates provide Buyer notice). Buyer shall ensure that such access shall be governed used by such personnel only for the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicablepurposes contemplated by, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entityterms of, this Agreement. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of use their respective Affiliates) in which the Company reasonable best efforts to cooperate and Parent (or their respective Affiliates) are adverse parties, fully implement this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceedingparagraph promptly.
Appears in 1 contract
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall direct its and their respective Representatives to), upon the reasonable request by the other, use reasonable best efforts to furnish to the other, as promptly as practicable, all information concerning itself, its Representatives and such other matters as may be necessary or advisable in connection with the documentation to effect the expiration of all waiting periods under applicable LawLaws and, if applicable, any contractual waiting periods under any timing agreements with a Governmental Entity applicable to the consummation of the transactions contemplated by this Agreement, and all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Affiliates to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the transactions contemplated by this Agreement.
(b) In addition to and without limiting the rights and obligations set forth in Section 6.06(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access from the date of this Agreement and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of pursuant to Article VII, (i) the Company shall (and shall cause its Subsidiaries to), afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeVIII, to the its employees, officers, agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing that, subject to compliance with the obligations set forth in this Agreement shall require Section 6.06(c), neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure wouldfurnish such information or documents to the extent (i) such information relates to any Acquisition Proposal or similar transaction, before or would reasonably be expected toafter the date hereof, including the applicable portions of the minutes of the meetings of the Company Board or any committee thereof (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (A) contravene the transactions contemplated by this Agreement or any applicable Law (including Data Protection Laws) or Pandemic Measure, (B) result in similar transaction involving the waiver of or otherwise jeopardize any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination sale of the Company, after consultation with outside legal counsel, expose the Company or any a material portion of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitiveassets, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C)to, or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) combination of the Company Disclosure Schedule.
with, any other Person or (dB) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.Acquisition Proposal or
Appears in 1 contract
Sources: Merger Agreement
Information and Access. (a) Subject The Company and Parent each shall (and shall cause its Subsidiaries to, and shall use its reasonable best efforts to applicable Lawcause its and their respective Representatives to), from upon the date of this Agreement reasonable request by the other, furnish to the other, as promptly as practicable, with all information concerning itself, its Representatives and continuing until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII, such other matters as may be necessary or advisable (i) in connection with the Proxy Statement, (ii) to effect the expiration of all waiting periods under applicable Antitrust Laws and (iii) in connection with all filings, notices, reports, consents, registrations, approvals, permits and authorizations, made or sought by or on behalf of Parent, the Company or any of their respective Subsidiaries to or from any third party, including any Governmental Entity, in each case necessary or advisable in connection with the transactions contemplated by this Agreement and, with respect to the information supplied by or on behalf of Parent, its Subsidiaries or its or their respective Representatives for inclusion in or incorporation by reference into the Proxy Statement, Parent acknowledges and agrees that such information will be correct and complete in all material respects at the time so supplied.
(b) In addition to and without limiting the rights and obligations set forth in Section 7.9(a), the Company shall (and shall cause its Subsidiaries to), upon reasonable prior notice, afford Parent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner as not to unreasonably interfere with access during the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance noticeInterim Period, to the employees, officers, Company Employees and the Company’s agents, properties, offices and other facilities, Contracts, books and records of the Company and its Subsidiaries and (ii) records, and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all other information and documents concerning or regarding its businesses, properties and assets and personnel as may reasonably be requested by or on behalf of Parent; provided, however, that nothing in this Agreement shall require neither the Company or nor any of its Subsidiaries shall be required to provide access or to disclose information if such access or disclosure furnish such information or documents to the extent doing so would, or would reasonably be expected toin the reasonable judgment of the Company, taking into account the advice of the Company’s outside legal counsel, result in (A) contravene any a violation of applicable Law Law, including COVID-19 Measures (including Data Protection Laws) provided, that the Company shall, and shall cause its Subsidiaries to, use reasonable best efforts to provide such access as can be provided in a manner without violating such COVID-19 Measures or Pandemic Measureother applicable Law), (B) result the breach of any contractual confidentiality obligations in any Contract with a third party entered into prior to the waiver date of this Agreement or otherwise jeopardize following the date of this Agreement in compliance with Section 7.1 or Section 7.2 (as applicable), (C) waiving the protection of any attorney-client privilege or protection (including attorney-client privilege, attorney work-product protections and confidentiality protections) or other applicable legal privilege or protection, (C) in the reasonable determination of the Company, after consultation with outside legal counsel, expose the Company or any of its Subsidiaries to risk of material liability with respect to the violation of any confidentiality provision of any Contract or disclosure of sensitive, confidential or personal information or would cause competitive harm to the Company, its Subsidiaries or their respective businesses if the Transactions are not consummated, (D) involve any invasive investigations, sampling or testing with respect to any environmental matters, (E) result in the disclosure of any Trade Secrets in a manner that would result in any such Trade Secrets no longer being protected as such under applicable Law following such disclosure; provided, however, that in each case of clauses (A), (B), (C), or (E), the Company and Parent shall use reasonable best efforts to communicate, or make reasonable substitute arrangements, if applicable and as may be mutually agreed, to make available, the applicable information or documents to Parent in a manner that would not violate applicable Law, Pandemic Measure, result in such loss of legal privilege or protection, or Contract, expose the Company to risk of material liability or result in such Trade Secret no longer being protected as such under applicable Law (as applicable), including pursuant to customary clean team, joint defense or similar arrangements. To the extent that any of the information or documents furnished or otherwise made available pursuant to this Section 5.7 or otherwise in accordance with the terms and conditions of this Agreement, the Confidentiality Agreement or the Parent Confidentiality Agreement constitutes information or documents that may be subject to an attorney-client privilege or protection (including attorney-client privilege, attorney work-work- product protections and confidentiality protections) or any other applicable privilege or protection concerning pending or threatened Proceedings, the Parties (x) understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material and information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under such privileges and protections and (y) shall use reasonable best efforts to ensure that disclosure thereof does not result in the loss of any such privilege or protection, including entering into a joint defense agreement or other arrangements.
(b) All information and documents disclosed or otherwise made available in connection with this Agreement and the Transactions shall be governed by the terms and conditions of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement, as applicable, and subject to applicable Laws relating to the exchange or sharing of information and any restrictions or requirements imposed by any Governmental Entity. The Parties expressly agree that, notwithstanding any provision of the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement or the Parent Clean Team Agreement to the contrary, the Confidentiality Agreement, the Clean Team Agreement, the Parent Confidentiality Agreement and the Parent Clean Team Agreement shall continue in full force and effect until the earlier of (i) the Closing and (ii) twelve (12) months following termination of this Agreement in accordance with its terms.
(c) In furtherance of and without limiting the foregoing, from the date of this Agreement until the earlier of termination of this Agreement or the Effective Time, the Company shall provide Parent and its Representatives with the information and access described in Section 5.7(c) of the Company Disclosure Schedule.
(d) For the avoidance of doubt, the Company and its Subsidiaries shall only be required to provide Parent or its Representatives access or information pursuant to this Section 5.7 in connection with this Agreement and the Transactions.
(e) Notwithstanding anything to the contrary in this Agreement, following the initiation and during the pendency of any Proceeding between or among the Parties (or any of their respective Affiliates) in which the Company and Parent (or their respective Affiliates) are adverse parties, this Section 5.7 shall not require either Party or its respective Affiliates to provide access or to disclose information in connection with any such Proceeding.Proceedings or
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Sources: Merger Agreement