Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mirati Therapeutics, Inc.), Agreement and Plan of Merger (Mirati Therapeutics, Inc.)
Access and Investigation. (a) During the period from the execution and delivery of this Agreement Date until the earlier of the First Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations Corporations, upon reasonable advanced written notice, to, : (i) provide Parent (and Parent’s Representatives Representatives) with reasonable access during normal business hours to all of the Company to the Company’s designated their respective Representatives, senior management personnel, properties and assets and to all existing books, records, Contracts, Tax Returns, Company Employee Plans, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations, Corporations and (ii) promptly provide Parent (and Parent’s Representatives Representatives) with all reasonably requested (and readily available) information regarding the business of the Acquired Corporations, including copies of the existing books, records, Contracts, Tax Returns, Company Employee Plans files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations (in the case of Parent), and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably requestrequest (including copies of: (A) all material operating and financial reports prepared by the Acquired Corporations for the Company’s senior management (B) any material notice, report or other document filed with or sent to any Governmental Entity on behalf of any of the Acquired Corporations in connection with the Mergers or any of the Transactions, other than exhibits or attachments to their respective HSR Notification and Report forms, which may be withheld from Parent, and (C) any material notice, report or other document received by any of the Acquired Corporations from any Governmental Entity); provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCorporations and shall be subject to the Confidentiality Agreement. Nothing Notwithstanding anything herein to the contrary, no Acquired Corporation shall require any of the Acquired Corporations be required to disclose (or provide access to) any information to Parent or any of its Subsidiaries (or any of its or their Representatives) if such disclosure would, in the Company’s reasonable discretion or access would be reasonably likely to (after consultation with its outside counsel) and after notice to Parent (iw) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto)privilege, (iix) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired CorporationLaws, (y) violate any Acquisition Proposal obligation of any Acquired Corporation with respect to confidentiality or privacy or (z) a materially interfere with the conduct of any Acquired Corporation’s business. The Company Adverse Recommendation Change. With respect to shall use its reasonable best efforts make appropriate substitute access and disclosure arrangements under circumstances in which the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all restrictions of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)preceding sentence apply.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cott Corp /Cn/), Agreement and Plan of Merger (Primo Water Corp)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ; or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) Requirements or the contractual counterparty); provided, however, in the case of clause (iii) contravene any Contract ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct direct Parent’s Representatives and Financing Sources to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Juno Therapeutics, Inc.), Agreement and Plan of Merger (Celgene Corp /De/)
Access and Investigation. During the period from the execution and delivery of this Agreement Date until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 9.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company and its directors, employees and officers shall, and the Company shall cause the respective direct its other Representatives of the Acquired Corporations toCompany, (a) to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesAcquired Companies’ officers, properties employees, other personnel, and assets and to all existing books, records, documents books and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; records (provided, however, that any such access shall be conducted at Parent’s sole expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany) and (b) to furnish to Parent such financial and operating data and other information as Parent may reasonably request, but in the case of clauses (a) and (b), solely to the extent that such access or furnishing of data or other information is related to planning for integration or operation of the Company following the Closing or the satisfaction of any condition to Closing. Nothing The foregoing notwithstanding, nothing herein shall require the Company to permit any inspection or testing, or to disclose any information, that in the reasonable judgment of the Acquired Corporations Company would be materially detrimental to the Company’s business or operations nor shall anything herein require the Company to disclose any information to Parent if (i) such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (ix) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (iiy) contravene any applicable Law (including Antitrust Law) or fiduciary duty or (ii) in the Company’s reasonable discretion, such documents or information are reasonably pertinent to any adverse Legal Requirement (so long as Proceeding between the Acquired Corporations have reasonably cooperated with Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Information disclosed pursuant to permit this Section 6.1 shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation the Company reasonably determines doing so is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.16.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Confidentiality Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January June 1, 20232021, by and between the Company and Parent (the “Confidentiality Non-Disclosure Agreement”). All requests for information made pursuant to this Section 6.1 shall be directed to an executive officer of the Company or other person designated by the Company in writing. Nothing in this Section 6.1 will be construed to require the Company or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Flexion Therapeutics Inc), Agreement and Plan of Merger (Pacira BioSciences, Inc.)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations Company to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations, Company; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company, including copies of the existing books, records, Tax Returns, files related to Intellectual Property Rights, work papers and other documents and information relating to the Company, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompany, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent Parent) (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Requirement; provided, however, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated July 24, dated October 19, 20202012, as amended by that Amendment No. 1amended, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cubist Pharmaceuticals Inc), Agreement and Plan of Merger (Trius Therapeutics Inc)
Access and Investigation. (a) During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives ensure that each of the Acquired Corporations to, other Inphi Entities and its and their respective Representatives: (i) provide Parent Marvell and ParentMarvell’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesInphi Entities’ personnel, properties and assets and to all existing books, records, Tax Returns, auditor work papers (subject to entering into a customary non-reliance agreement reasonably acceptable to such auditor) and other documents and information relating to the Acquired Corporations, Inphi Entities; and promptly (ii) provide Parent Marvell and ParentMarvell’s Representatives with all reasonably requested information regarding the business such copies of the Acquired Corporations existing books, records, Tax Returns, auditor work papers and other documents and information relating to the Inphi Entities, and with such additional financial, operating and other data and information regarding the Acquired CorporationsInphi Entities, in each case, as Parent Marvell may reasonably request; provided, however, that request for purposes reasonably related to the facilitation or consummation of any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Contemplated Transactions, in each case, upon reasonable advance notice during normal business hours and in such a manner so as not to unreasonably interfere with the normal operation business operations of the business of Inphi Entities. Notwithstanding the Acquired Corporations. Nothing herein foregoing: (A) nothing in this Section 4.1(a) shall require any of the Acquired Corporations Inphi Entity or its Representatives to disclose any information to Parent Marvell or Marvell’s Representatives if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene would violate any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated law or any confidentiality agreement with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract a third party to which an Acquired Corporation any Inphi Entity is a party or by which an Acquired Corporation is bound as of the date of this Agreement Agreement, or jeopardize the attorney-client privilege, work product doctrine or other legal privilege held by any Inphi Entity; and (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts B) if any Inphi Entity does not provide or cause its Representatives to permit disclosure to the extent permitted by provide such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent access or Parent’s Representatives if such information relates in reliance on clause “(A)” of this sentence, then the Company shall promptly (and in any event within two Business Days after such Inphi Entity determines that it will not provide or cause it Representatives to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors provide such access or such committee thereofinformation) where provide a written notice to Marvell stating that it is withholding such access or such information and stating the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply withjustification therefor, and shall instruct Parent’s Representatives use commercially reasonable efforts to comply withprovide the applicable information in a way that would not violate such law or such confidentiality agreement, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)or jeopardize such privilege.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (INPHI Corp), Agreement and Plan of Merger and Reorganization (Marvell Technology Group LTD)
Access and Investigation. During From the period from the execution and delivery date of this Agreement until the earlier to occur of the Effective Time and the valid Closing Date or termination of this Agreement pursuant Agreement, Parent shall cause the Rodeo Entities to Section 7.1 (the “Pre-Closing Period”)allow Buyer and its Representatives reasonable access, at all reasonable times during normal business hours, upon reasonable advance notice notice, to the Companyofficers, employees and other personnel, attorneys, accountants, lenders and other representatives, records and files, correspondence, audits and properties, as well as to all information relating to commitments, contracts, titles and financial position and results of operations, or otherwise pertaining to the business, operations, and affairs of the Rodeo Entities and the Business, including inspection of such properties. Notwithstanding the foregoing, neither Rodeo nor any of its Affiliates shall be required to provide any information that (x) it reasonably believes it may not provide to Buyer by reason of Legal Requirements, (y) the disclosure of which would reasonably be expected to jeopardize applicable attorney/client privilege or work product protections; provided that Buyer and Parent shall consider in good faith on a case by case basis whether such privilege or protection may be preserved by entering into a common interest agreement, joint defense agreement or similar arrangement, or (z) it is required to keep confidential by reason of contract or agreement with third parties, provided that in lieu of providing any such contract or agreement Rodeo provides Buyer with a reasonably detailed summary of the material terms thereof. All requests for site visits and related discussions or questions regarding procedures shall be coordinated with the Chief Accounting Officer of Seller, unless such individual directs otherwise, and in no event shall Buyer or anyone on Buyer’s behalf communicate with any past, present or prospective supplier, customer, consultant, creditor, bank or employee of Seller, any Rodeo Entity or the Business, or with any Governmental Entity, concerning or related to the Transactions, unless Parent consents in advance to such communication, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the Acquired Corporations term “inspection” herein shall not encompass, and neither Buyer nor its Representatives shall be entitled to conduct (except as may be consented to in writing by Parent in its sole discretion), any Phase I review (whether conducted pursuant to applicable ASTM standards or otherwise) or any invasive, surface or subsurface testing or sampling, whether contemplated by any on-site investigation conducted in accordance with the current ASTM standards for the conduct of a Phase II on-site investigation or otherwise, including any soil borings, hand borings, geoprobes, test pits or monitoring xxxxx. IN CONNECTION WITH ANY ENVIRONMENTAL DUE DILIGENCE, SUBJECT TO SECTIONS 7.2(d) and 7.2(f)(vii), BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD PARENT, SELLER, RODEO AND EACH OF THE BUYER-INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES (AS DEFINED IN SECTION 10.2(a)(i) AND BELOW IN THIS SECTION 5.1) ARISING OUT OF OR RELATING TO THE DUE DILIGENCE CONDUCTED BY, BUT ONLY TO THE EXTENT CAUSED BY, BUYER, BUYER’S AFFILIATES OR ANY PERSON ACTING ON BUYER’S OR ITS AFFILIATES’ BEHALF, IN CONNECTION WITH ANY REAL PROPERTY SITE VISITS, REAL PROPERTY SITE INSPECTIONS AND ANY SAMPLING OF ANY ENVIRONMENTAL MEDIA FROM ANY REAL PROPERTY (IF AND TO THE EXTENT SELLER CONSENTS TO SUCH ACTIVITIES). Without limiting the foregoing, for purposes of this Section 5.1, “Damages” includes demands, claims, lawsuits, causes of action, losses, investigations and other proceedings, and other elements of “Damages” related thereto, brought by or asserted by Rodeos’ customers and the owners of any affected Leased Real Property. Buyer shall, and shall cause its Representatives to, in connection with the respective Representatives conduct of the Acquired Corporations due diligence investigations described in this Section 5.1, comply fully with all rules, regulations, policies and instructions reasonably issued by Parent, Seller or any Rodeo Entity and provided to Buyer regarding such Person’s actions while upon, entering or leaving any Real Property. Buyer shall not, and shall cause its Representatives not to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation day-to-day operations of the business of the Acquired Corporations. Nothing herein shall require Business in conducting any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)due diligence activities.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Joy Global Inc), Stock Purchase Agreement (Cameron International Corp)
Access and Investigation. During the period from the execution and delivery of this Agreement Date until the earlier of the Effective Acceptance Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance written notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company Acquired Corporations to the Company’s designated Acquired Corporations’ Representatives, personnel, properties and assets and to all existing books, records, Contracts, Tax Returns, Employee Plans, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Contracts, Tax Returns, Employee Plans, files related to Intellectual Property Rights, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCorporations and shall be subject to the Confidentiality Agreement dated February 23, 2015. Nothing herein shall require any of the Acquired Corporations Corporation to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent Parent, (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Laws; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)complying with applicable Antitrust Laws.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ikanos Communications, Inc.), Agreement and Plan of Merger (Ikanos Communications, Inc.)
Access and Investigation. During the period from the execution and delivery date of this Agreement and continuing until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 9 or the Closing (the “Pre-Closing Period”), each of the Selling Shareholders shall, and each of the Selling Shareholders shall ensure that the Acquired Companies and their respective Representatives, subject to the Confidentiality Agreement: (a) upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations tonotice, provide Parent the Purchaser and Parentthe Purchaser’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Companies’ Representatives, properties personnel and assets and to all existing books, records, Tax Returns and related supporting documents, work papers and other documents and information relating to the Acquired Corporations, Companies; and promptly provide Parent (b) act reasonably in providing the Purchaser and Parentthe Purchaser’s Representatives with all reasonably requested copies (or permitting the Purchaser and the Purchaser’s Representatives to make copies) of such existing books, records, Tax Returns and related supporting documents, work papers and other documents and information regarding the business relating to each of the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding each of the Acquired CorporationsCompanies, as Parent the Purchaser may reasonably request; provided, however, that (i) the Selling Shareholders shall not be required to violate any Legal Requirement relating to confidentiality to which they, or the Acquired Companies, are subject, and such access and investigation shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere in any material respect with the normal operation of the Acquired Companies. During the Pre-Closing Period, the Purchaser (only in consultation and collaboration with the Company or a Selling Shareholder, and with the prior written consent of a Selling Shareholder, which consent shall not be unreasonably delayed or withheld) may make inquiries of Persons having business of the Acquired Corporations. Nothing herein shall require relationships with any of the Acquired Corporations to disclose any information to Parent if such disclosure wouldCompanies (including suppliers, in the Company’s reasonable discretion (after consultation with its outside counsellicensors, distributors and customers) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as each of the Selling Shareholders shall ensure that each of the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), Companies helps facilitate (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure and provides reasonable cooperation to the extent not prohibited by Legal RequirementsPurchaser in connection with) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)inquiries.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Applied Materials Inc /De)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompany, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company and such additional financial, operating and other data and information regarding the Acquired CorporationsCompany, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Any such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) Requirements or the contractual counterparty); provided, however, in the case of clause (iii) contravene any Contract ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Mutual Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 17, 20232020, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Forty Seven, Inc.), Agreement and Plan of Merger (Gilead Sciences Inc)
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 or the Effective Time (the “"Pre-Closing Period”"), subject to applicable Legal Requirements and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations shallCompany and Parent shall each, and shall cause each of their respective Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives other party with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired Company, as the case may be; and (b) provide the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Company, as the case may be. During the Pre-Closing Period, the Company and Parent shall, and shall cause their respective Representatives to, cause their senior officers to meet, upon reasonable notice and during normal business hours, with their respective chief financial officers and other officers responsible for the Company's and Parent's financial statements and the internal controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate in order to enable Parent to comply following the Closing with the Xxxxxxxx-Xxxxx Act and the rules and regulations relating thereto. Subject to Section 5.7 and without limiting the generality of any of the foregoing, during the Pre-Closing Period, the Company and Parent shall promptly provide the other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Alamo Corporations or the Abeline Corporations, and promptly provide Parent and Parent’s Representatives respectively, in connection with all reasonably requested information regarding the business Merger or any of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at Contemplated Transactions a reasonable time, under the supervision of appropriate personnel time in advance of the Acquired Corporations and filing or sending of such document in such order to permit a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporationsreview thereof. Nothing herein shall require any of the Acquired Corporations Company or the Parent to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) would jeopardize any attorney-client privilege or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as Agreement; provided that the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts parties shall cooperate to permit disclosure disclose such information to the extent permitted by possible without jeopardizing such Contract)privilege or contravening such Legal Requirements or binding agreements. Notwithstanding the foregoing, nothing in All information exchanged pursuant to this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates be subject to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger And (Amag Pharmaceuticals Inc.), Agreement and Plan of Merger And (Allos Therapeutics Inc)
Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the Company’s Representatives to provide Parent, Purchaser and each of their respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Representatives and assets and properties, and to all existing books, records, Tax Returns, work papers, documents and information relating to the Acquired CorporationsCompany Entities, and promptly provide Parent Parent, Purchaser and Parent’s each of their respective Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company Entities and such additional financial, operating operating, Tax and other data and information regarding the Acquired CorporationsCompany Entities, as Parent and/or Purchaser and/or their respective Representatives may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions (including with respect to integration planning related thereto); provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany Entities. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent and Purchaser and has used reasonable best efforts to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have Company has reasonably cooperated with Parent and Purchaser and has used their reasonable best efforts to permit disclosure to the extent permitted by such ContractLegal Requirements). Notwithstanding the foregoing, nothing in this Section 4.1 5.1 shall require an Acquired Corporation the Company to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation ChangeChange Recommendation. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Mutual Confidentiality Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. March 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cti Biopharma Corp), Agreement and Plan of Merger (Cti Biopharma Corp)
Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance written notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Representatives, its Subsidiaries and its Subsidiaries’ Representatives of the Acquired Corporations to, : (i) provide Parent and Parent’s Representatives with reasonable access during the normal business hours of the Company to the Company’s designated Representatives, properties personnel, Real Property, officers, employees, agents, offices and other properties, and assets and to all existing books, records, Contracts, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany and its Subsidiaries, and (ii) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company and such its Subsidiaries, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Company and its Subsidiaries, and with any available or reasonably producible additional financial, operating and other data and information regarding the Acquired CorporationsCompany and its Subsidiaries, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany and its Subsidiaries. Nothing herein shall require the Company to disclose (A) any information concerning Acquisition Proposals, which shall be governed by Section 5.4, (B) any information regarding the deliberations of the Acquired Corporations Company Board with respect to disclose this Agreement or the transactions contemplated hereby or any information similar transaction or transactions with any other Person, or any materials provided to Parent if such disclosure wouldthe Company Board in connection therewith, or (C) any information, that in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent good faith judgement of the Company would (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Law, fiduciary duty or Contract entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (including any confidentiality agreement to which the Company or its Affiliates is a party, so long as the Acquired Corporations have reasonably cooperated with Parent and Company has used their commercially reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Law, agreement or duty), or (iii) unreasonably disrupt the operations of the Company and its Subsidiaries; provided, further, that information described in the foregoing clause (C)(i), shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Company determines doing so may be reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.3 to Parent and its Representatives, Parent shall comply with, and shall instruct cause Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 5.3 shall be directed to the executive officer or other Person designated by the Company. No investigation shall affect the Company’s representations and warranties contained herein, or limit or otherwise affect the remedies available to Parent or Purchaser pursuant to this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Datawatch Corp), Agreement and Plan of Merger (Altair Engineering Inc.)
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and the valid termination of this Agreement pursuant to in accordance with Section 7.1 8 or the Acceptance Time (the “Pre-Closing Period”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause its Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent; and (b) provide the Acquired CorporationsRepresentatives of Parent with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent. During the Pre-Closing Period, the Company and the Parent shall, and promptly provide Parent shall cause their respective Representatives to, cause their senior officers to meet, upon reasonable notice and during normal business hours, with their respective chief financial officers and other officers responsible for the Company’s and Parent’s Representatives with all reasonably requested information regarding financial statements and the business internal controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate. Without limiting the generality of any of the Acquired Corporations foregoing, during the Pre-Closing Period (but subject to applicable Legal Requirements, and such additional financialexcept in the case of any document relating to any Acquisition Proposal, operating Superior Offer or Triggering Event), the Company and Parent shall each promptly provide the other data and information regarding with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations, as Tetraphase Companies or Parent may reasonably request; provided, however, that or Purchaser in connection with the Merger or any such access shall be conducted at Parent’s expense, at of the other Contemplated Transactions a reasonable time, under the supervision of appropriate personnel time in advance of the Acquired Corporations and filing or sending of such document in such order to permit a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporationsreview thereof. Nothing herein shall require any of the Acquired Corporations Company or Parent to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) would jeopardize any attorney-client privilege or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as Agreement; provided that the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts parties shall cooperate to permit disclosure disclose such information without jeopardizing such privilege or contravening such Legal Requirements or binding agreements. All information exchanged pursuant to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates be subject to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (La Jolla Pharmaceutical Co), Agreement and Plan of Merger (Tetraphase Pharmaceuticals Inc)
Access and Investigation. (a) During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company(i) Geron shall afford BioTime’s and BAC’s officers and other authorized Representatives reasonable access, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company hours, to Geron’s books and records (or portions thereof) pertaining solely to the CompanyContributed Geron Assets and the Assumed Geron Liabilities (provided that such access does not unreasonably interfere with the ongoing business or operations of Geron) and (ii) Geron shall furnish to BioTime and BAC such readily available information concerning the Contributed Geron Assets and the Assumed Geron Liabilities as BioTime or BAC may reasonably request and as is necessary or required for inclusion in (and Geron shall use commercially reasonable efforts to provide reasonable access to Geron’s designated Representativesindependent registered accountants with respect to the Contributed Geron Assets and the Assumed Geron Liabilities to facilitate the preparation of) the Proxy Statement, properties the BioTime Registration Statement, the BioTime Prospectus, the BAC Registration Statement and assets the BAC Prospectus pursuant to Section 4.7 of this Agreement and to all existing books, records, documents and information relating to comply with the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding reporting obligations of BioTime under the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably requestExchange Act; provided, however, that any (i) such access to Geron’s independent registered accountants will be subject to customary exceptions to be negotiated with such accountants, and BioTime shall reimburse Geron for the reasonable fees and expenses of Geron’s independent registered accountants, if any, in connection therewith, and (ii) Geron shall not be conducted at Parent’s expenserequired pursuant to this Agreement to permit any inspection or other access, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations or to disclose any information to Parent if such disclosure wouldinformation, that in the Company’s reasonable discretion judgment of Geron could (after consultation with its outside counselA) and after notice to Parent result in the disclosure of any trade secrets, (iB) jeopardize any protections afforded Geron under the attorney-client privilege or other legal privilege the attorney work product doctrine, or (so long C) violate or breach, or result in a violation or breach of, any Legal Requirement, Order or any Contract; provided, however, that in the case of information as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection which Geron is bound by a contractual obligation of or non-disclosure, Geron shall use commercially reasonable efforts to obtain permission to disclose such the information on to BioTime, provided that BioTime agrees to enter into a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure confidentiality agreement acceptable to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract applicable third party. Geron shall use its commercially reasonable efforts to which an Acquired Corporation is a party or by which an Acquired Corporation is bound preserve intact, and maintain access to, the Data Room for BioTime’s and BAC’s respective officers and other authorized Representatives and shall provide reasonable access, upon reasonable notice and during normal business hours, to Geron personnel who have knowledge about the Contributed Geron Assets. Geron shall provide BioTime and BAC with electronic copies of all of the contents of the Data Room as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract)hereof. Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose BioTime hereby agrees that any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed knowledge obtained pursuant to this Section 4.1, Parent 4.1(a) shall comply with, and shall instruct Parent’s Representatives be subject to comply with, all the terms of its obligations under the that certain Mutual Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30February 22, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 20232012, by and between the Company Geron and Parent BioTime (the “Confidentiality AgreementCDA”). BioTime’s and BAC’s officers and other Representatives shall have the right to make copies of the books and records and other documents and information provided under this Section 4.1(a).
Appears in 2 contracts
Samples: Asset Contribution Agreement (Biotime Inc), Asset Contribution Agreement (Geron Corp)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, databases (to the extent transferable), reports, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCorporations or create material risk of damage or destruction to any material assets or property. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent would (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement (so long as Requirement, fiduciary duty or binding confidentiality agreement entered into by the Acquired Corporations have reasonably cooperated with Parent Company prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit the inspection, or to disclose such information, on a basis that does not contravene any applicable Legal Requirement, fiduciary duty or confidentiality agreement); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Corporations determine doing so is reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Confidentiality Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. December 4, dated as of August 302018, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 5.1 shall be directed to the executive officer or other Person designated by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Merck & Co., Inc.), Agreement and Plan of Merger (Immune Design Corp.)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Corporation has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (including any confidentiality agreement to which the Acquired Corporation or its Affiliates is a party) (so long as the Acquired Corporations have reasonably cooperated with Parent and Company has used their commercially reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Legal Requirement, agreement or duty (to the extent permitted by such Contractcommercially practicable). Notwithstanding ); provided, further, that information may be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the foregoing, nothing in this Section 4.1 shall require an extent the Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or determines doing so may be reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated February 9, dated October 192017, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Allergan, Inc. (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Zeltiq Aesthetics Inc), Agreement and Plan of Merger (Zeltiq Aesthetics Inc)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the CompanyClosing Date, Seller and its officers, employees, counsel, accountants and other authorized representatives ("Representatives") will, (i) afford Buyer and its Representatives reasonable access to Seller's (with respect to the Acquired Corporations shallBusiness) and each Subsidiary's senior management personnel, properties, contracts, books, and shall cause the respective Representatives records, and other documents and data, (ii) permit access to or furnish copies to Buyer and its Representative (as requested by Buyer, provided that if copies are to be furnished it will be furnished at Buyer's expense) of the Acquired Corporations toall such contracts, provide Parent books and Parent’s records, and other existing documents and data as Buyer may reasonably request, and (iii) furnish Buyer and its Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating operating, and other data and information regarding the Acquired Corporations, as Parent Buyer may reasonably request; provided, howeverincluding, that any such access shall be conducted at Parent’s expense, at a reasonable time, under without limitation periodically reporting to Buyer the supervision of appropriate personnel status of the Acquired Corporations business, operations and in such a manner as not to unreasonably interfere with the normal operation finances of the business Business. Seller shall also inform Buyer (upon its request) of any facts or circumstances of which Seller has knowledge which calls into question the collectibility of any Accounts Receivable, adequacy of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis bad debt reserves that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound exist as of the date of this Agreement (so long as Closing Date and the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions adequacy of the minutes of the meetings of the Board of Directors Xxxxx Xxx Reserve. No information or knowledge obtained in any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed investigation pursuant to this Section 4.1SECTION 6.1 shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the Consummated Transactions. Buyer agrees that from the date hereof until the Closing, Parent shall comply withBuyer will not discuss or negotiate any terms of employment with any employees of the Subsidiaries (other than disclosing to any such employee the obligations of Buyer pursuant to SECTION 8.10(b) hereof), and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended without prior approval by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)Seller's President or Chairman.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (K Tel International Inc), Purchase and Sale Agreement (Platinum Entertainment Inc)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Offer Acceptance Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Entities shall, and shall cause the respective Representatives of the Acquired Corporations Entities to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsEntities that are in the possession of, or reasonably accessible to, the Acquired Entities; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Entities, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Entities, and with such additional financial, operating and other data and information regarding the Acquired CorporationsEntities that are in the possession of, or reasonably accessible to, the Acquired Entities, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Entities and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsEntities or create a risk of damage or destruction to any property or assets of the Acquired Entities. Any access to the properties of the Acquired Entities will be subject to the Company’s reasonable security measures and insurance requirements. Nothing herein shall require any of the Acquired Corporations Entities to disclose any information concerning Acquisition Proposals, which shall be governed by Section 5.3(c), or provide access to or disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent discretion: (i) jeopardize any attorney-client client, work product privilege or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto)privilege, (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or Contract entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have Entity or its Affiliates is a party), (iii) reasonably cooperated with be expected to violate or result in a loss or impairment of any Owned IP or (iv) unreasonably disrupt the operations of the Acquired Entities; provided, further, that information described in the foregoing clause (i) shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Entity determines doing so may be reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1 to Parent and Parent’s Representatives, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Confidentiality Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. June 2, effective as of August 202016, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”). All requests for access pursuant to this Section 5.1 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. No investigation shall affect the Company’s representations and warranties contained herein, or limit or otherwise affect the remedies available to Parent or Purchaser pursuant to this Agreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (J2 Global, Inc.), Agreement and Plan of Merger (Everyday Health, Inc.)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Companies shall, and shall cause the respective Representatives of the Acquired Corporations to, Companies to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Nothing herein shall require any of the Acquired Corporations Companies to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) Requirements or the contractual counterparty); provided, however, in the case of clause (iii) contravene any Contract ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean-room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Mutual Confidentiality Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30February 10, 20212017, Amendment No. 2, effective as of amended on August 20, 20212017, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gilead Sciences Inc), Agreement and Plan of Merger (Kite Pharma, Inc.)
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and the valid termination of this Agreement pursuant to in accordance with Section 7.1 8 or the Effective Time (the “Pre-Closing Period”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations shallCompany and Parent shall each, and shall cause each of their respective Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives other party with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany, as the case may be; and (b) provide the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Company, as the case may be. During the Pre-Closing Period, the Company and the Parent shall, and promptly provide Parent shall cause their respective Representatives to, cause their senior officers to meet, upon reasonable notice and during normal business hours, with their respective chief financial officers and other officers responsible for the Company’s and Parent’s Representatives with all reasonably requested information regarding financial statements and the business internal controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate. Without limiting the generality of any of the Acquired Corporations foregoing, during the Pre-Closing Period (but subject to applicable Legal Requirements, and such additional financialexcept in the case of any document relating to any Acquisition Proposal, operating Superior Offer or Triggering Event), the Company and Parent shall each promptly provide the other data and information regarding with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations, as Tetraphase Companies or Parent may reasonably request; provided, however, that or Merger Sub in connection with the Merger or any such access shall be conducted at Parent’s expense, at of the other Contemplated Transactions a reasonable time, under the supervision of appropriate personnel time in advance of the Acquired Corporations and filing or sending of such document in such order to permit a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporationsreview thereof. Nothing herein shall require any of the Acquired Corporations Company or Parent to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) would jeopardize any attorney-client privilege or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as Agreement; provided that the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts parties shall cooperate to permit disclosure disclose such information without jeopardizing such privilege or contravening such Legal Requirements or binding agreements. All information exchanged pursuant to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates be subject to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Tetraphase Pharmaceuticals Inc), Agreement and Plan of Merger (Acelrx Pharmaceuticals Inc)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Companies shall, and shall cause the their respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Companies’ Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, Companies; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Company, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompany, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited or binding confidentiality agreement entered into by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of Company prior to the date of this Agreement (so long as the Acquired Corporations Companies have reasonably cooperated with Parent and used their reasonable best efforts to permit such inspection of or to disclose such information on a basis that does not contravene any applicable Legal Requirement or confidentiality agreement); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Company determines that doing so is reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Confidentiality Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. November 3, effective as of October 182017, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Mallinckrodt LLC (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 5.1 shall be directed to the executive officer or other Person designated by the Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mallinckrodt PLC), Agreement and Plan of Merger (Sucampo Pharmaceuticals, Inc.)
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations shallCompany and Parent shall each, and shall cause each of their respective Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives other party with reasonable access during normal business hours of the Company to the Company’s designated Representativesits personnel, properties tax and accounting advisers and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent or the Acquired CorporationsCompany, as the case may be; and (b) provide the Representatives of the other party with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Company, as the case may be. During the Pre-Closing Period, the Company shall, and promptly provide Parent and shall cause the Representatives of each of the Opnext Corporations to, permit Parent’s Representatives senior officers to meet, upon reasonable notice and during normal business hours, with all reasonably requested information regarding the business chief financial officer and other officers of the Acquired Company responsible for the Company’s financial statements and the internal controls of the Opnext Corporations and to discuss such additional financial, operating and other data and information regarding the Acquired Corporations, matters as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, deem necessary or appropriate in order to enable Parent to satisfy its post-Closing obligations under the supervision Xxxxxxxx-Xxxxx Act and the rules and regulations relating thereto. Without limiting the generality of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations foregoing, during the Pre-Closing Period, subject to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (shall each promptly provide the “Confidentiality Agreement”)other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Opnext Corporations or Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Opnext Inc), Agreement and Plan of Merger and Reorganization (Oclaro, Inc.)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until through the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Closing Date (the “Pre"PRE-Closing Period”CLOSING PERIOD"), upon reasonable advance notice to the Company, the Acquired Corporations Seller shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Acquisition Sub and their Representatives with reasonable access during normal business hours of the Company to the Company’s designated Seller's Representatives, properties personnel and assets Purchased Assets and to all existing books, records, Tax Returns, internal work papers and other documents and information relating to Seller and the Acquired Corporations, and promptly Purchased Assets; (b) provide Parent and Parent’s Acquisition Sub and their Representatives with all reasonably requested information regarding the business such copies of the Acquired Corporations existing books, records, Tax Returns, internal work papers and other documents and information relating to Seller, and with such additional financial, operating and other data and information regarding the Acquired CorporationsSeller and its financial condition, as Parent or Acquisition Sub may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a and (c) fully cooperate with Parent and Acquisition Sub in their reasonable time, under the supervision of appropriate personnel investigation of the Acquired Corporations and in such a manner as not to unreasonably interfere with Purchased Assets. Without limiting the normal operation generality of the business of foregoing, during the Acquired Corporations. Nothing herein Pre-Closing Period, Seller shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice furnish promptly to Parent (i) jeopardize any attorneya copy of each report, schedule, registration statement and other document filed or furnished by Seller during the Pre-client or other legal privilege (so long as Closing Period with the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto)SEC, (ii) contravene any applicable Legal Requirement material notice, document or other communication sent or proposed to be sent by or on behalf of Seller by any party to any Assumed Contract or sent to Seller by any party to any Assumed Contract (so long as other than any communication that relates solely to routine commercial transactions between Seller and the Acquired Corporations have reasonably cooperated other party to any such Assumed Contract and that is of the type sent in the ordinary course of business and consistent with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or past practices); and (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound all other information existing concerning the Business, properties and personnel as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the TransactionsAcquisition Sub may reasonably request; it being understood that, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With with respect to the information disclosed pursuant to referenced in this Section 4.15.01(a), Seller shall not be required to create information for Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all Acquisition Sub that it would not normally create in the ordinary course of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)business.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cygnus Inc /De/), Asset Purchase Agreement (Animas Corp)
Access and Investigation. During the period from the execution and delivery of this Agreement Date until the earlier of the Effective Offer Acceptance Time and the valid termination of this Agreement pursuant to Section 7.1 9.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company and its directors, employees and officers shall, and the Company shall cause the respective direct its other Representatives of the Acquired Corporations toCompany, (a) to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representativesofficers, properties employees, other personnel, and assets and to all existing books, records, documents books and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; records (provided, however, that any such access shall be conducted at Parent’s sole expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company or its Subsidiaries and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany and its Subsidiaries) and (b) to furnish to Parent such financial and operating data and other information as Parent may reasonably request, but in the case of clauses (a) and (b), solely to the extent that such access or furnishing of data or other information is related to planning for integration or operation of the Company and its Subsidiaries following the Closing or the satisfaction of any condition to Closing. Nothing The foregoing notwithstanding, nothing herein shall require the Company or any of the Acquired Corporations its Subsidiaries to permit any inspection or testing, or to disclose any information to Parent if such disclosure wouldinformation, that the Company in the Company’s reasonable discretion good faith determination of the Company (after consultation with its outside counsel) and after notice to Parent ): (i) would reasonably be expected to (x) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (iiy) contravene any applicable Law (including Antitrust Law), fiduciary duty or binding Contract (including any confidentiality agreement to which the Company, its Subsidiaries or its Affiliates is a party); or (ii) is reasonably pertinent to any adverse Legal Requirement (so long as Proceeding between the Acquired Corporations have reasonably cooperated with Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Information disclosed pursuant to permit this Section 6.1 shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (Company determines doing so long as the Acquired Corporations have may be reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.16.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Non-Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 309, 2023 and effective as of January 1, 20232021, by and between the Company and Parent (the “Confidentiality Non-Disclosure Agreement”). All requests for information made pursuant to this Section 6.1 shall be directed to an executive officer of the Company or other person designated by the Company in writing. Nothing in this Section 6.1 will be construed to require the Company, its Subsidiaries or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Adamas Pharmaceuticals Inc), Agreement and Plan of Merger (Supernus Pharmaceuticals, Inc.)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesRepresentatives and to properties, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if to the extent (i) such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (ix) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (iiy) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iiiz) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent ) or Parent’s Representatives if (ii) such information relates to the applicable portions of is included in the minutes of the meetings of the Board of Directors or its committees and relates to the discussion by the Board of Directors or any applicable committee thereof of the Transactions or any similar transaction between the Company and any other Person (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the TransactionsDirectors, whether in connection with a specific meeting, or otherwise relating to such subject matter). Notwithstanding anything to the contrary herein, the Acquired Corporations may satisfy their obligations set forth above to provide access to personnel, assets, books, records, work papers and any similar transaction involving an Acquired Corporation, other documents and information by electronic means if physical access would not be permitted under the applicable Legal Requirements (y) including any Acquisition Proposal or (z) a Company Adverse Recommendation ChangeCOVID-19 Measures). With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18March 22, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Checkmate Pharmaceuticals, Inc.)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of through the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations Companies to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies’ Representatives, personnel and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably requestAssets; provided, however, that any such access shall be conducted at coordinated through senior management of the Company (and Company counsel) and the Company shall have the right to approve in advance the script, if any, to be used in connection with such access, such approval not to be unreasonably withheld; (b) provide Parent and Parent’s expenseRepresentatives with such copies of the existing books, at a reasonable timerecords, under Tax Returns, work papers and other documents and information relating to the supervision Acquired Companies, and with such additional financial, operating and other data and information (including information on bank accounts and investments) regarding the Acquired Companies and their financial condition, as Parent may reasonably request; (c) provide to Parent all information concerning the Acquired Companies’ business that Parent reasonably requests; (d) permit Parent and its Representatives to contact major customers of appropriate personnel the businesses of the Acquired Corporations Companies; provided, however, that any customer contact shall be coordinated through senior management of the Company (and Company counsel), and the Company shall have the right to approve in advance the script, if any, to be used in connection with such a manner as customer contact, such approval not to be unreasonably interfere withheld; (e) provide Parent and Parent’s Representatives with reasonable access to the Owned Real Property, and subject to the terms of each Real Property Lease, the Leased Real Property, for the purpose of conducting phase I environmental site assessments; provided, however, that any access shall be coordinated through senior management of the Company (and Company counsel), and the Company shall have the right to approve in advance the script, if any, to be used in connection with such access, such approval not to be unreasonably withheld; and (f) provide notice of the transactions contemplated by this Agreement to any and all unions or labor organizations representing any employees of the Company or its Subsidiaries; provided, however, that any notice shall be coordinated through senior management of the Company (and Company counsel), and the Company shall have the right to approve in advance any notice, such approval not to be unreasonably withheld. Without limiting the generality of the foregoing, during the Pre-Closing Period, the Company shall furnish promptly to Parent: (i) a copy of each report, schedule, registration statement and other document filed by the Company during the Pre-Closing Period with the normal operation SEC; (ii) any material notice, document or other communication sent or proposed to be sent by or on behalf of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations Companies to disclose any information party to Parent if such disclosure would, any Specified Contract of a type described in the Company’s reasonable discretion subsections (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect theretoa), (iib) contravene and (c) of Section 3.14 or, solely with respect to any applicable Legal Requirement material notice, document or other communication alleging a breach of any Specified Contract of a type described in subsections (so long as a), (b) and (c) of Section 3.14, sent to any of the Acquired Corporations have reasonably cooperated Companies by any party to any such Specified Contract (other than any communication that relates solely to routine commercial transactions between an Acquired Company and the other party to any such Specified Contract and that is of the type sent in the ordinary course of business and consistent with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or past practices); (iii) contravene all other written information concerning its business, properties and personnel as Parent may reasonably request. In addition, the Company shall during the Pre-Closing Period give written notice to Parent, and Parent shall during the Pre-Closing Period give prompt written notice to the Company of (a) the discovery by such party of any Contract event, condition, fact or circumstance that occurred or existed on or prior to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted that caused or constitutes a material inaccuracy in any representation or warranty made by such Contract)party in this Agreement; (b) the discovery by such party of any event, condition, fact or circumstance that occurs, arises or exists after the date of this Agreement and that would cause or constitute a material inaccuracy in any representation or warranty made by such party in this Agreement if such representation or warranty had been made as of the time of the occurrence, existence or discovery of such event, condition, fact or circumstance; (c) the failure by it to comply with or satisfy in any material respect any covenant, condition or agreement to be complied with or satisfied by it under this Agreement; (d) the occurrence of an event or circumstance that could be reasonably expected to make the timely satisfaction of any of the conditions set forth in Section 7 impossible or unlikely or that has had or would reasonably be expected to have a Material Adverse Effect; or (e) the commencement of any litigation or Proceeding against or affecting this Agreement, or the Merger; provided, however, in the case of subsections (a) and (b) of this sentence, the notice may be given within three (3) Business Days of the applicable discovery. Notwithstanding the foregoing, nothing anything in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates 5.1 to the applicable portions of the minutes of the meetings of the Board of Directors contrary, no notice, report or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed document given pursuant to this Section 4.15.1 shall have any effect on the representations, Parent shall comply withwarranties, and shall instruct Parent’s Representatives to comply with, all covenants or agreements contained in this Agreement for purposes of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as determining satisfaction of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)any condition contained herein.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Systems & Computer Technology Corp)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Offer Acceptance Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, officers, employees, agents, properties, offices and other facilities and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business business, properties, contracts, assets, liabilities, capitol stock, personnel and other aspects of the Acquired Corporations Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information concerning Acquisition Proposals, which shall be governed by Section 5.3(c), or any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent good faith judgment of the Company (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated Corporation or its Affiliates is a party); provided, further, that with Parent respect to clauses (i) and used their (ii) of this Section 5.1, the Company, as applicable, shall use its commercially reasonable best efforts to (A) obtain the required consent of any such third party to provide such inspection or disclosure, (B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to Parent or (C) utilize the procedures of a joint defense agreement or implement such other techniques if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such privilege; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract)the Acquired Corporation determines doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws. Notwithstanding To the foregoing, nothing in extent that any of the information or material furnished pursuant to this Section 4.1 5.1 or otherwise in accordance with the terms of this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, the parties 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 is not intended to, and shall require an Acquired Corporation to disclose not, waive or diminish in any information to Parent way the confidentiality of such material or Parent’s Representatives if its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information relates that is entitled to protection under the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations attorney-client privilege, work product doctrine or other materials prepared by or for applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changejoint defense doctrine. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Confidentiality Agreement dated October 1923, 20202015, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Corporations’ Representatives, properties personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto)privilege, (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated with Company or its Affiliates is a party) or (iii) result in the disclosure of any trade secrets of third parties. Without limiting the foregoing, in the event that the Company does not disclose information in reliance on the preceding sentence, it shall provide notice to Parent that it is withholding such information and used their shall use its reasonable best efforts to permit disclosure communicate, to the extent permitted by feasible, the applicable information in a way that would not violate the applicable Legal Requirements, Contract or obligation or risk waiver of such Contract)privilege. Notwithstanding Without limiting the foregoing, nothing in generality of this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates 4.1, from the date of this Agreement until the Effective Time, the Company will furnish to the applicable portions Parent promptly upon written request by Parent (to the extent such items become available), (i) monthly financial statements, including an unaudited balance sheet, income statement and statement of cash flows for each month through the Closing Date, (ii) any material update of its outlook for the quarter or the balance of the minutes of the meetings of the Board of Directors or any committee thereof fiscal year as it may prepare for management’s internal use and (including any presentations or other materials prepared by or for the Board of Directors or such committee thereofiii) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changemonthly same store results. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct cause Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated January 21, dated October 19, 20202013, as amended by that Amendment No. 1amended, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Sycamore Partners Management, L.L.C. (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing personnel, assets, books, records, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (including any confidentiality agreement to which an Acquired Corporation or its Affiliate is a party) (so long as the Acquired Corporations have reasonably cooperated with Parent and Company has used their commercially reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Legal Requirements, agreement or duty); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding that the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Company determines doing so may be reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated June 29, dated October 192016, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the its Subsidiaries and its and their respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours (including electronic access) to each of the Company to the Acquired Company’s designated Representativesproperties, properties personnel, offices, books and assets and to all existing books, records, Contracts, commitments, work papers and other documents and information relating to the Acquired CorporationsCompany and provide copies of such books and records, Contracts, commitments, work papers and promptly provide Parent other documents and Parent’s Representatives with all reasonably requested information regarding relating to the business Company (other than any of the Acquired Corporations foregoing to the extent specifically related to the negotiation and such additional financialexecution of this Agreement or any sale process preceding the execution and delivery of this Agreement, operating and other data and information regarding the Acquired Corporationsor, except as expressly provided in Section 4.1, Section 4.3 or Section 5.1, to any Acquisition Proposal), in each case as Parent may reasonably requestrequests solely for the purposes of furthering or preparing for the consummation of the Merger or the other Transactions; provided, however, that any such access shall be conducted at Parent’s sole cost and expense, at a reasonable timetime during the Company’s normal business hours, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany, and shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to permit any inspection or physical testing of real property that in the reasonable judgment of the Company would be detrimental to the Acquired Corporations Companies’ business or operations if the Transactions are not consummated nor shall anything herein require the Company to disclose any information to Parent if such disclosure would, in upon the Company’s reasonable discretion advice of outside legal counsel, (after consultation with its outside counsel) and after notice to Parent (ia) jeopardize any attorney-client or other legal privilege (so long provided, that the Company shall use its reasonable best efforts to allow the disclosure of such document or information (or as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection much of or to disclose such information on it as possible) in a basis manner that does not waive such privilege with respect theretoresult in a loss of attorney-client or other legal privilege), (iib) contravene any applicable Legal Requirement (so long as provided, that the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their Company shall use its reasonable best efforts to permit allow the disclosure of such document or information (or as much of it as possible) in a manner that does not contravene applicable Legal Requirement; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contractthe Company determines, on the advice of outside legal counsel, that doing so may be reasonably required for the purpose of complying with applicable Antitrust Laws). Notwithstanding , (c) result in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose disclosure of any information to Parent or Parent’s Representatives if such information relates to the applicable portions valuations of the minutes of Company prepared in connection with the meetings of the Board of Directors Transactions or any committee thereof other strategic alternative, or (including any presentations or other materials prepared by or d) be for the Board purpose of Directors disclosing such document or such committee thereof) where information in any Legal Proceeding between the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation ChangeParties. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, as though it was the “Receiving Party” thereto, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and certain Confidentiality Agreement entered into between the Company and Parent Brightstar Capital Partners in respect of the Transactions, which Confidentiality Agreement is set forth on Section 4.1 of the Company Disclosure Letter (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 4.1 shall be directed to the executive officer or other Person designated by the Company. Despite anything in this Section 4.1 to the contrary, nothing in this Section 4.1 shall be construed to require any Acquired Company or any of its respective Representatives to prepare any financial statements, projections, reports, analyses, appraisals or opinions that are not readily available. Notwithstanding the foregoing or anything to the contrary in the Confidentiality Agreement, Parent will be permitted to disclose all non-public and confidential information provided by or on behalf of the Company to Parent or any of its Affiliates or Representatives to any financing sources or prospective financing sources (including lenders and limited partners) and other financial institutions and investors that may become parties to the Financing (and, in each case, to their respective Representatives) so long as such Persons (i) agree to be bound by the Confidentiality Agreement as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company and of which the Company is a beneficiary. Notwithstanding anything to the contrary contained herein, the Company shall (a) use reasonable best efforts to conduct its response to any audits, investigations or Legal Proceedings with respect to international trade, duties and customs matters actively and diligently, (b) keep Parent reasonably informed of all substantive developments and events relating to such matters (including by promptly forwarding copies to Parent of any correspondence or other materials sent to or received from any Governmental Body with respect thereto), (c) provide Parent (or Parent’s designated counsel or advisors) with an opportunity to review and comment on any substantive written filings or materials (including any correspondence) prepared by or on behalf of the Company in connection with such matters, reasonably in advance of the submission of such filings or material, and (d) reasonably consult with Parent in connection with the prosecution and defense of such matters; provided, however, that the Company shall not be required to disclose any information to Parent pursuant to this sentence if such disclosure would, upon the advice of outside legal counsel, jeopardize any attorney-client or other legal privilege (provided, that the Company shall use its reasonable best efforts to allow the disclosure of such document or information (or as much of it as possible) in a manner that does not result in a loss of attorney-client or other legal privilege).
Appears in 1 contract
Access and Investigation. During Subject to the Confidentiality Agreement, during the period from commencing on the execution Agreement Date and delivery of this Agreement until ending on the earlier of (a) the Effective Time Closing and (b) the valid termination of this Agreement pursuant to Section 7.1 (such period being referred to herein as the “Pre-Closing Interim Period”“), upon reasonable advance notice to Seller and the Company, the Acquired Corporations Company shall, and shall cause the their respective Representatives of the Acquired Corporations to, : (i) provide Parent Buyer and Parent’s its Representatives with reasonable access during normal business hours of the Company upon reasonable advance prior written notice to the Company’s designated and Seller’s Representatives, properties and assets and to all existing properties, books, records, non-income Tax Returns, material operating and financial reports, work papers, assets, executive officers, Contracts and other documents and information to the extent relating to the Acquired CorporationsCompany and the Company Subsidiaries; and (ii) provide Buyer and its Representatives with such copies of the books, records, non-income Tax Returns, work papers, Contracts and other documents and information to the extent relating to the Company and the Company Subsidiaries, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding to the Acquired Corporationsextent relating to the Company and the Company Subsidiaries, as Parent Buyer may reasonably request. Information obtained by Buyer or its Representatives pursuant to this Section 5.1 will constitute “Evaluation Material” under the Confidentiality Agreement and will be subject to the provisions of the Confidentiality Agreement. Nothing in this Section 5.1 will require Seller, the Company or any Company Subsidiary to permit any inspection, or to disclose any information, that in the reasonable judgment of Seller would (A) violate any of Seller’s or its Affiliates’ respective obligations under any confidentiality agreement, (B) result in a violation of applicable Law (including ITAR) or (C) result in loss of legal protection, including the attorney client privilege and work product; provided in each case that Seller provides Buyer with the basis for withholding such documents and, in the case of clause (A), if requested by Buyer, uses commercially reasonable efforts to get all requisite approval to make such information available to Buyer. In no event shall Buyer, its Affiliates or their respective Representatives contact any customer or supplier of the Company or the Company Subsidiaries with respect to the Transactions without the prior written consent of the Chief Executive Officer or General Counsel of Seller. 5.2 Operation of the Company’s Business. (e) Except (i) as expressly contemplated or required by this Agreement, (ii) as required by applicable Law, (iii) as expressly contemplated or required by the Carveout Agreement, (iv) as set forth in Section 5.2(a) or Section 5.2(b) of the Seller Disclosure Letter, or (v) as consented to in writing by Buyer, during the Interim Period, the Company shall and shall cause the Company Subsidiaries to (A) ensure that it conducts the Business (x) in the ordinary course consistent with past practices; and (y) in material compliance with all applicable Law and each Company Material Contract; (B) use commercially reasonable efforts to ensure that it preserves intact its current business organization, keeps available the services of its current officers and employees and maintains its satisfactory relations and goodwill with material suppliers, landlords, and other Persons having material business relationships with the Company and the Company Subsidiaries; and (C) keep in full force and effect all appropriate insurance policies covering all assets of the Company and the Company Subsidiaries. (f) Except (A) as expressly contemplated or required by this Agreement, (B) as required by applicable Law (provided, howeverthat in the case of clause (B), that Seller shall provide prior written notice to Buyer describing any such access shall be conducted at Parent’s expenseactions covered by any of clauses (i) through (xviii) below), at a reasonable time(C) as expressly contemplated or required by the Carveout Agreement, under the supervision of appropriate personnel (D) as set forth in Section 5.2(b) of the Acquired Corporations Seller Disclosure Letter, or (E) as consented to in writing by Buyer, during the Interim Period, the Company shall not and shall cause the Company Subsidiaries not to: (iii) declare, accrue, set aside or pay any dividend, make or pay any dividend or other distribution (whether in such cash, stock, property or otherwise) in respect of any shares of capital stock or any other Company or Company Subsidiary securities (other than dividends or distributions paid in cash from the Company or a manner direct or indirect wholly owned Company Subsidiary to Seller, the Company or another direct or indirect wholly owned Company Subsidiary); adjust, split, combine or reclassify any capital stock or otherwise amend the terms of any Company or Company Subsidiary securities; or acquire, redeem or otherwise reacquire or offer to acquire, redeem or otherwise reacquire any shares of capital stock or other securities; (iv) sell, issue, grant or authorize the sale, issuance, or grant of: (A) any capital stock or other equity security; (B) any option, call, warrant or right to acquire any capital stock or other equity security; or (C) any instrument convertible into or exchangeable for any capital stock or other equity security; (v) amend or permit the adoption of any amendment to the Company’s or a Company Subsidiary’s certificate of incorporation or bylaws; (vi) acquire any equity interest of any other Person, or effect or become a party to any merger, consolidation, share exchange, business combination, amalgamation, recapitalization, reclassification of shares, stock split, reverse stock split, division or subdivision of shares, consolidation of shares or similar transaction; (vii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiaries or alter through merger, liquidation, reorganization or restructuring the corporate structure of the Company or any Company Subsidiaries, excluding the merger, dissolution, liquidation or consolidation of any Company Subsidiary with or into the Company or another Company Subsidiary. (viii) enter into any Contract that would explicitly impose any material restriction on the right or ability of the Company or any Company Subsidiary or any Affiliate of the Company or any Company Subsidiary: (A) to compete with any other Person; (B) to acquire any product or other asset or any services from any other Person; (C) to perform services for or sell products to any other Person; (D) to transact business with any other Person; or (E) to operate at any location in the world, in each case, other than Contracts that contain covenants that prohibit the Company or any Company Subsidiary from using any trade names other than the Company’s or a Company Subsidiary’s trade names; (ix) other than in the ordinary course of business (A) amend or terminate (other than expiration in accordance with its terms), or (B) waive any material right, remedy or default under any Company Material Contract; (x) except as set forth on Section 5.2(b)(viii) of the Seller Disclosure Letter, sell or otherwise dispose of, or lease or license any right or other asset or property of the Company or the Company Subsidiaries to any other Person (except in each case for rights, assets or properties: (A) acquired, leased, licensed or disposed of by the Company in the ordinary course of business; or (B) that are not material to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require Company or the Company Subsidiaries); (xi) make any pledge of any of its properties or assets or any interest therein or permit any of its assets to become subject to any Liens (other than Permitted Liens); (xii) lend money to any Person (other than advances to Business Employees in the Acquired Corporations ordinary course of business consistent with past practice), guarantee any Indebtedness (other than in the ordinary course of business consistent with past practices and that is settled prior to disclose Closing), or incur any information to Parent if such disclosure wouldindebtedness for borrowed money or other indebtedness of the Company evidenced by credit agreements, notes, bonds, indentures, securities or debentures (other than, in each case, (A) intercompany Indebtedness among the Company and the Company Subsidiaries or (B) intercompany Indebtedness among the Company, any Company Subsidiary, Seller or any other Subsidiary of Seller that, except as provided in Section 5.9, is settled prior to the Closing); (xiii) establish, adopt, enter into any new, amend, terminate or take any action to accelerate rights under, any Company Employee Benefit Plan or Company Employee Agreement, grant or pay any bonus or make any profit-sharing payment to, or materially increase the amount of the wages, salary, commissions, fringe benefits or other compensation (including equity or equity-based compensation, whether payable in stock, cash or other property) or remuneration payable to any Business Employees (except that the Company may: (A) provide routine salary increases to Business Employees in the ordinary course of business and in connection with the Company’s reasonable discretion customary employee review process; (after consultation with its outside counselB) and after notice subject to Parent the salary increase limitations in clause (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect theretoA), promote or change the title of any Business Employee in the ordinary course of business and in connection with the Company’s customary employee review process; (iiC) contravene any applicable Legal Requirement enter into written Business Employee Agreements with newly hired Business Employees in a manner consistent with the Company’s customary past practices; (so long as D) amend the Acquired Corporations have reasonably cooperated with Parent to permit disclosure Company Employee Benefit Plans to the extent not prohibited required by Legal Requirementsapplicable Laws; and (E) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound make customary bonus and profit-sharing payments in accordance with, and as of required by, Company Plans existing on the date of this Agreement); (xiv) make any capital expenditures in excess of $300,000 in the aggregate, except (i) capital expenditures made in accordance with the Company’s annual budget and capital expenditure plan, as furnished to Buyer or (ii) purchases of supplies in the ordinary course of business, consistent with past practice, including purchases of “at-risk” inventory; (xv) settle, compromise, discharge or agree to settle any Legal Proceeding other than those that do not involve the payment by the Company or any Company Subsidiaries of monetary damages and do not involve any injunctive or other non-monetary relief or impose restrictions on the business or operations of the Company or the Company Subsidiaries; provided, that the Company or the Company Subsidiaries may settle or agree to settle any litigation, investigation, arbitration or proceeding that does not involve the payment by the Company or any of the Company Subsidiaries of monetary damages in excess of $100,000 in the aggregate provided that the Company has kept Buyer reasonably informed of the status of settlement discussions prior to any such settlement; (xvi) hire any employee that would be entitled to receive annual cash compensation of $150,000 or more (except in order to fill a position vacated after the Agreement Date at compensation rates not to exceed those of the prior employee of the position so filled); (so long xvii) other than as the Acquired Corporations have reasonably cooperated with Parent required by changes in GAAP or SEC rules and used their reasonable best efforts regulations, change any of its methods of accounting or accounting practices; (xviii) make or change any Tax election, adopt or change any method of Tax accounting, file any amended Tax Return, enter into any closing agreement, settle any Tax Claim or assessment, surrender any right to permit disclosure claim a Tax Refund, or consent to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent waiver or Parent’s Representatives if such information relates to the applicable portions extension of the minutes statute of limitations with respect to any Tax matter, unless, in each case, doing so either (a) would not reasonably be expected to cause an increase in Taxes of the meetings of the Board of Directors Company or any committee thereof Company Subsidiary after the Closing Date or (including b) is required by Law; (xix) discontinue or fail to renew any presentations policies of insurance to which the Company or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactionsany Company Subsidiary is a party, or under which the Company or any similar transaction involving Company Subsidiary is covered as a “Named Insured” or an Acquired Corporation, (y) any Acquisition Proposal “Additional Insured”; or (zxx) a Company Adverse Recommendation Changeauthorize any of, or commit, resolve, propose or agree in writing or otherwise to take any of, the foregoing actions. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).5.3
Appears in 1 contract
Samples: Iii Stock Purchase Agreement
Access and Investigation. (a) During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives ensure that each of the other Acquired Corporations to, Companies: (i) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesAcquired Companies’ personnel, properties properties, facilities and assets and to all existing books, records, Tax Returns, Contracts, permits, work papers and other documents and information relating to the Acquired Corporations, and promptly Companies; (ii) provide Parent and Parent’s Representatives with all reasonably requested information regarding the business such copies of the existing books, records, Tax Returns, Contracts, permits, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request; provided(iii) instruct the employees, howevercounsel, that accountants and other Representatives, in each case, as appropriate or relevant, of the Acquired Companies to reasonably cooperate with and make themselves reasonably available to Parent in good faith in connection with the foregoing; and (iv) maintain in operation the electronic data room(s) made available by the Company to Parent and its Representatives in connection with the Contemplated Transactions and continue to provide Parent and its Representatives with access through such electronic data room(s) to all information contained therein as of the date of this Agreement to the same extent provided prior to the date hereof, and (v) promptly notify Parent of the commencement of any such access shall be conducted material Legal Proceeding the commencement of which Parent has not previously been notified by the Company or its Representatives and provide periodic briefings at Parent’s expense, the request of Parent to update Parent at a reasonable timelevel of detail on the status of any material Legal Proceeding or material claim threatened, under the supervision of appropriate personnel commenced or asserted against or with respect to any of the Acquired Corporations Companies, or any material developments in ongoing material Legal Proceedings of the Acquired Companies, in the case of the foregoing clause (i), (A) upon reasonable advance notice, during normal business hours, in accordance with reasonable procedures established by Parent and the Company and in such a manner as that does not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies, including any reasonable procedures established by the Acquired Companies in response to the COVID-19 pandemic; (B) as Parent may reasonably request for purposes reasonably related to the Contemplated Transactions; (C) which shall exclude any invasive testing or evaluation, including any Phase II environmental testing; and (D) which shall be at Parent’s sole cost and expense. Nothing herein Without limiting the generality, in each case of the foregoing, during the Pre- Closing Period, the Company shall require promptly provide Parent, upon request, with copies of: (x) any written materials or communications sent by or on behalf of the Company to its stockholders; and (y) any notice, report or other document filed with or sent to any Governmental Authority on behalf of any of the Acquired Corporations to disclose Companies in connection with the Merger or any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Contemplated Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Companies shall, and shall cause the respective Representatives of the Acquired Corporations to, Companies to provide Parent and Parent’s Representatives (including the Financing Sources and their respective Representatives) with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Representatives and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Nothing herein shall require any of the Acquired Corporations Companies to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations Companies have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation Company is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations Companies have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives (including the Financing Sources and their Respective Representatives) to comply with, all of its obligations under the Confidential Disclosure Confidentiality Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18November 4, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Computer Task Group Inc)
Access and Investigation. (a) During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives ensure that each of the other Acquired Corporations to, Companies and its and their respective Representatives: (i) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Companies’ Representatives, management, properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, Companies upon reasonable advance notice during normal business hours of the Company and promptly in such a manner as to not unreasonably interfere with the normal operation of the business of the Company; and (ii) provide Parent and Parent’s Representatives with all reasonably requested information regarding the business such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under . Without limiting the supervision of appropriate personnel generality of the foregoing, during the Pre-Closing Period, the Company shall promptly provide Parent, upon request, with copies of: (A) all material operating and financial reports prepared by the Acquired Corporations and in such a manner as not to unreasonably interfere with Companies for the normal operation Company’s senior management; (B) any written materials or communications sent by or on behalf of the business Company to its stockholders; (C) any notice, report or other document filed with or sent to any Governmental Body on behalf of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose Companies in connection with the Merger or any information to Parent if such disclosure wouldof the other Contemplated Transactions; and (D) any material notice, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client report or other legal privilege (so long as document received by any of the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene Companies from any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract)Governmental Body. Notwithstanding the foregoing, : (1) nothing in this Section 4.1 shall require an any Acquired Corporation Company or its Representatives to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed disclosure would: (x) the Transactions, or violate any similar transaction involving an Acquired Corporation, applicable Legal Requirement; (y) any Acquisition Proposal jeopardize the attorney-client privilege or similar legal privilege applicable to such information; or (z) violate any confidentiality agreement with a third party to which any Acquired Company Adverse Recommendation Change. With respect to is a party as of the information disclosed pursuant to date of this Section 4.1, Parent shall comply with, Agreement; and shall instruct Parent’s (2) if any Acquired Company does not provide or cause its Representatives to comply withprovide such access or such information in reliance on clause “(1)” above, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company shall: (aa) promptly (and in any event within two Business Days) provide a written notice to Parent stating that it is withholding such access or such information and stating the justification therefor; and (bb) use commercially reasonable efforts to provide the “Confidentiality Agreement”)applicable information in a way that would not violate such Legal Requirement or confidentiality agreement or jeopardize such privilege.
Appears in 1 contract
Samples: Agreement and Plan of Merger (ADESTO TECHNOLOGIES Corp)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Corporations’ Representatives, properties personnel and assets assets, supervised conversations with customers and suppliers and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated with Company or its Affiliates is a party), provided that the Company shall use commercially reasonable efforts to obtain any Consents of third parties that are necessary to allow such information to be disclosed to Parent and used their its Representatives and shall otherwise use commercially reasonable best efforts to permit allow for such access or disclosure in a manner that does not result in a breach of this clause (ii) or (iii) result in the disclosure of any trade secrets of third parties; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Table of Contents Agreement dated June 14, dated October 192013, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Vista Equity Partners III, LLC (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Greenway Medical Technologies Inc)
Access and Investigation. During Between the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Closing Date, Sellers will, and will cause the Company and its Representatives to: (the “Pre-Closing Period”)a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, upon "Buyer's Advisors") reasonable advance notice access to the Company's properties, the Acquired Corporations shallcontracts, books and records, and shall cause the respective Representatives of the Acquired Corporations toother documents and data, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company will permit Buyer to contact any third party from whom information is sought relevant to the Company’s designated RepresentativesContemplated Transactions; (b) furnish Buyer and Buyer's Advisors with full and complete copies of all such contracts, properties books and assets and to all existing books, records, and other existing documents and information relating to the Acquired Corporations, data as Buyer may reasonably request; (c) furnish Buyer and promptly provide Parent and Parent’s Representatives Buyer's Advisors with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating operating, and other data and information regarding the Acquired Corporations, as Parent Buyer may reasonably request; providedand (d) facilitate Buyer’s due diligence visits with certain primary vendors and customers of the Company as specifically provided for herein. Notwithstanding the foregoing, howeverany contact with employees, that any such access vendors, and customers of the Group shall be conducted at Parentmade only with Sellers’ prior approval and after all other due diligence has been completed by Buyer and all other relevant materials issues have been agreed to and concluded between the parties. BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD THE GROUP MEMBERS AND THEIR AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS AND LOSSES CAUSED DIRECTLY OR INDIRECTLY BY THE ACTS OR OMISSIONS OF BUYER OR BUYER’S REPRESENTATIVES IN CONNECTION WITH ANY DUE DILIGENCE CONDUCTED PURSUANT TO OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING ANY SITE VISITS AND ENVIRONMENTAL SAMPLING. Buyer shall comply fully with all rules, regulations, policies and instructions issued by the Group while upon, entering or leaving any Group Member’s expenseproperty, at a reasonable time, under including any insurance requirements that the supervision of appropriate personnel of Group may impose on contractors authorized to perform work on any property owned or operated by the Acquired Corporations and in such a manner as Group. Buyer shall not to unreasonably interfere with the normal operation day-to-day operations of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)Group.
Appears in 1 contract
Samples: Stock Purchase Agreement (Standex International Corp/De/)
Access and Investigation. During Between the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”)Date, and upon reasonable advance notice to received from Buyer, Buyer shall coordinate with the CompanyRepresentatives of Seller (Xxx Xxxxxxx for operational matters and Xxxxxx Xxxxxxx for financial matters), and Seller shall (and Shareholders shall cause Seller to) (a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, the Acquired Corporations shall"Buyer Group") full and free access, and shall cause the respective Representatives of the Acquired Corporations toduring regular business hours, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesSeller's personnel, properties (including subsurface testing), Contracts, Governmental Authorizations, books and assets Records and to all existing books, records, other documents and information relating data, such rights of access to be exercised in a manner that does not unreasonably interfere with the Acquired Corporationsoperations of Seller; (b) furnish the Buyer Group with copies of all such Contracts, Governmental Authorizations, books and promptly provide Parent Records and Parent’s Representatives other existing documents and data as Buyer may reasonably request; (c) furnish the Buyer Group with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other relevant data and information regarding the Acquired Corporations, as Parent Buyer may reasonably request; provided(d) cooperate with Buyer in its review of the internal and disclosure controls of Seller as Buyer shall deem necessary for Buyer to satisfy its obligations under Section 302 and 906 of the Xxxxxxxx-Xxxxx Act of 2002 and any rules and regulations promulgated thereunder; and (e) otherwise cooperate and assist, howeverto the extent reasonably requested by Buyer, that any such access with Buyer's investigation of the properties, assets and financial condition related to Seller. In addition, Buyer shall be conducted have the right to have the Real Property and Tangible Personal Property inspected by the Buyer Group, at Parent’s Buyer's sole cost and expense, at a reasonable time, under for purposes of determining the supervision of appropriate personnel physical condition and legal characteristics of the Acquired Corporations Real Property and in Tangible Personal Property. In the event subsurface or other invasive testing is recommended by any of the Buyer Group, Buyer shall, upon notice to Seller, be permitted to have the same performed prior to the Closing Date, provided such a manner as testing does not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsBusiness at that location. Nothing herein shall require Buyer agrees to indemnify Seller from any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure physical damage to the extent not prohibited by Legal Requirements) Facilities that directly results from the Buyer Group's inspection and subsurface or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)invasive testing.
Appears in 1 contract
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Article 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Subsidiaries and Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Company and its Subsidiaries and their respective Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably requestrequest (other than any books, records, documents and information relating to the negotiation and execution of this Agreement, or, except as expressly provided in Section 5.03 and Section 6.01, any Acquisition Proposal or relating to any deliberation of the Board of Directors or any duly authorized committee thereof regarding any Acquisition Proposal or Company Adverse Change Recommendation), in each case for any reasonable purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Any such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by such Legal Requirements) Requirement or (iii) contravene any Contract party to which an Acquired Corporation is such Contract); provided, however, in the case of clause (ii), that the Parties shall cooperate in seeking to find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.1Section 5.01, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Mutual Non-Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18December 15, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”). Notwithstanding anything to the contrary herein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under the applicable Legal Requirements (including any COVID-19 Measures).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gilead Sciences, Inc.)
Access and Investigation. During Except as prohibited by applicable Legal Requirements, during the period from the execution and delivery date of this Agreement and continuing until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 or the Closing (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations its Subsidiaries and Affiliates to, and the Company shall direct each of its Representatives to: provide Parent Purchaser and ParentPurchaser’s Representatives Affiliates and Representatives, upon reasonable prior notice, with reasonable access during normal business hours of the Company to the Company’s designated Acquired Companies’ premises, Representatives, properties personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably requestCompanies; provided, however, that any such access no Acquired Company shall be conducted at Parent’s expense, at required to: (a) take any action that would constitute a reasonable time, under the supervision waiver of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other similar legal privilege or would divulge any Seller’s confidential information not related to any Acquired Company or the transactions contemplated by this Agreement; or (so long as b) supply Purchaser with any information that the Sellers’ Representative reasonably determines that any Acquired Corporations have reasonably cooperated with Parent Company is under a contractual or legal obligation not to permit such inspection of or to disclose such information on a basis that supply; provided, further that, if any Acquired Company does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if in reliance on the foregoing clauses “(a)” and “(b)” (after receiving a request for any such information relates from Purchaser), it shall provide notice to Purchaser that it is withholding such information and shall use commercially reasonable efforts to allow access or disclosure, to the applicable portions fullest extent feasible, of the minutes applicable information in a manner that would not result in the basis for such nondisclosure. During the Pre-Closing Period, Purchaser may, with the prior consent of the meetings Sellers’ Representative (not to be unreasonably withheld, conditioned or delayed), make inquiries of Persons having business relationships with the Board of Directors Acquired Companies; provided, further, that Purchaser shall coordinate all contact with such Persons through the Sellers’ Representative or any committee thereof (including any presentations or other materials prepared by or for its designee and the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply withshall, and shall instruct Parent’s Representatives to comply withcause its Subsidiaries to, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, facilitate and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)reasonably cooperate with Purchaser in connection with such permitted inquiries.
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, GHX shall (and shall cause its Subsidiaries to): (a) provide the respective Representatives of Stockholder and the Acquired Corporations to, provide Parent and Parent’s Stockholder's Representatives with reasonable access during normal business hours of the Company hours, upon reasonable notice to the Company’s designated RepresentativesGHX, properties to GHX's and its Subsidiaries' personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to GHX or its Subsidiaries; and (b) provide or make available to the Acquired Corporations, Stockholder and promptly provide Parent and Parent’s the Stockholder's Representatives with all reasonably requested information regarding the business such copies of the Acquired Corporations and such additional financialexisting books, operating records, Tax Returns, work papers and other data documents and information regarding relating to GHX or its Subsidiaries as the Acquired Corporations, as Parent Stockholder may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under . Without limiting the supervision generality of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations foregoing, during the Pre-Closing Period and subject to applicable Antitrust Laws, GHX and the Stockholder shall promptly provide the other party with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of GHX or the Stockholder, as applicable, in connection with the Merger or any of the other Contemplated Transactions. The foregoing shall not require GHX to permit any inspection, or to disclose any information to Parent if such disclosure wouldinformation, that in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice judgment of GHX could reasonably be expected to Parent result in (i) jeopardize the disclosure of any trade secrets of third parties or the violation of any obligations of GHX with respect to confidentiality if GHX shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure, (ii) the waiver of any applicable attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent GHX has taken reasonable steps to permit such inspection of or to disclose such information described in this clause (ii) on a basis that does not waive such compromise GHX's privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) thereto or (iii) contravene the violation of any Contract to applicable Legal Requirement. The parties shall seek in good faith appropriate substitute disclosure arrangements under circumstances in which an Acquired Corporation is a party the immediately preceding sentence applies. No investigation by the Stockholder shall limit or by which an Acquired Corporation is bound as otherwise affect any of the date representations, warranties, covenants or obligations of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing GHX contained in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Exchange Agreement (Vha Inc)
Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives (including the sources of Debt Financing) with reasonable access during the Company’s normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing personnel, assets, books, records, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any . Any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and Corporations, in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include the right to perform invasive testing without the Company’s prior written consent, which may be given or withheld in its sole discretion. Nothing herein in this Agreement shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure wouldthe Company determines, in the Company’s reasonable discretion (after consultation with its outside legal counsel) and after notice to Parent , that doing so is reasonably likely to: (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated used commercially reasonable efforts to cooperate with Parent to permit such inspection disclosure of or to disclose such information on a basis that does not waive such privilege with respect theretoprivilege), ; or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which an Acquired Corporation or its Affiliate is a party, provided that the Acquired Corporations Company shall have reasonably cooperated with Parent and used their commercially reasonable best efforts to permit obtain the consent of any applicable third-party to provide such information). Any information referred to in clause (i) above that is so disclosed shall be disclosed subject to execution of a joint defense agreement in customary form. In addition, disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding that the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Company determines doing so may be reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct cause Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Smart & Final Stores, Inc.)
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and the valid termination of this Agreement pursuant to in accordance with Section 7.1 8 or the Effective Time (the “Pre-Closing Period”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause its Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties its Representatives and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to such Entity or any of its Subsidiaries, in each case as reasonably requested by Parent; and (b) provide the Acquired CorporationsRepresentatives of Parent with such copies of the existing books, records, Tax Returns, work papers and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent. During the Pre-Closing Period, the Company and the Parent shall, and promptly provide Parent shall cause their respective Representatives to, cause their senior officers to meet, upon reasonable notice and during normal business hours, with their respective chief financial officers and other officers responsible for the Company’s and Parent’s Representatives with all reasonably requested information regarding financial statements and the business internal controls, respectively, to discuss such matters as the Company or Parent may deem necessary or appropriate. Without limiting the generality of any of the Acquired Corporations foregoing, during the Pre-Closing Period (but subject to applicable Legal Requirements, and such additional financialexcept in the case of any document relating to any Acquisition Proposal, operating Superior Offer or Triggering Event), the Company and Parent shall each promptly provide the other data and information regarding with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of any of the Acquired Corporations, as Tetraphase Companies or Parent may reasonably request; provided, however, that or Merger Sub in connection with the Merger or any such access shall be conducted at Parent’s expense, at of the other Contemplated Transactions a reasonable time, under the supervision of appropriate personnel time in advance of the Acquired Corporations and filing or sending of such document in such order to permit a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporationsreview thereof. Nothing herein shall require any of the Acquired Corporations Company or Parent to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) would jeopardize any attorney-client privilege or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as Agreement; provided that the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts parties shall cooperate to permit disclosure disclose such information without jeopardizing such privilege or contravening such Legal Requirements or binding agreements. All information exchanged pursuant to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates be subject to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).. 4.2
Appears in 1 contract
Samples: Agreement and Plan of Merger (La Jolla Pharmaceutical Co)
Access and Investigation. During Seller has previously, and between the period from the execution and delivery date ------------------------ of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Closing Date, Seller will, and will cause the Company and its Representatives to, (the “Pre-Closing Period”)a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, upon reasonable advance notice "Buyer's Advisors") full and free access to the Company's personnel, the Acquired Corporations shallproperties, contracts, books and records, and shall cause the respective Representatives other documents and data, (b) furnish Buyer and Buyer's Advisors with copies of the Acquired Corporations toall such contracts, provide Parent books and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, and other existing documents and information relating to the Acquired Corporationsdata as Buyer may reasonably request, and promptly provide Parent (c) furnish Buyer and Parent’s Representatives Buyer's Advisors with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating operating, and other data and information regarding the Acquired Corporations, as Parent Buyer may reasonably request. Seller further grants to Buyer and Buyer's agents, employees and consultants a nonexclusive license to enter upon each of the properties involved in each of the Projects for the purpose of allowing Buyer to conduct whatever soil and engineering tests, feasibility studies, surveys and other physical examinations of such properties Buyer deems appropriate (the reported results of which shall provided to both parties). Buyer shall indemnify, defend and hold Seller free and harmless from all loss or liability (including, without limitation, attorneys' fees) arising solely and directly from such activities of Buyer and its agents and employees upon such properties during the Feasibility Period, and from all mechanic's, materialmen's and other liens resulting solely and directly from any such conduct of Buyer and its agents and employees; provided, however, that Buyer shall have no liability for any such access shall be conducted at Parent’s expenseloss or damage attributable to the acts or omissions of Seller or Company or their agents, at a reasonable timeemployees, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner invitees or licensees or resulting from latent defects or Hazardous Substances (as not herein defined) within, on or adjacent to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of such properties. In the Acquired Corporations event that the Contemplated Transactions are not completed, Buyer agrees to disclose return to Seller or destroy (at Seller's request) all copies of contracts, books, documents, data and records, and any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client notes or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of written or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other electronically recorded materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the TransactionsBuyer, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect pertaining to the information disclosed pursuant to this Section 4.1Company, Parent shall comply withits projects, and shall instruct Parent’s Representatives assets and not to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)use or disclose to others any information contained therein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Standard Pacific Corp /De/)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Representatives and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transaction; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the out-of-pocket expense with supervision of appropriate personnel of the Acquired Corporations where applicable and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iii) contravene violate any Contract to which an Acquired Corporation is a party of its or by which an Acquired Corporation is bound as of the date of this Agreement its Affiliates’ respective confidentiality obligations (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contractconfidentiality obligations). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1letter agreement, effective as of July 3017, 20212020, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Akcea Therapeutics, Inc.)
Access and Investigation. During From the period from the execution and delivery date of this Agreement until the earlier to occur of the Effective Time and the valid Closing Date or termination of this Agreement pursuant Agreement, Seller shall cause Longhorn to Section 7.1 (the “Pre-Closing Period”)allow Buyer and its Representatives reasonable access, at all reasonable times during normal business hours, upon reasonable advance notice notice, to the Companyofficers, employees and other personnel, attorneys, accountants, lenders and other representatives, records and files, correspondence, audits and properties, as well as to all information relating to commitments, contracts, titles and financial position and results of operations, or otherwise pertaining to the business, operations, and affairs of the Longhorn Entities, including inspection of such properties. Notwithstanding the foregoing, no Longhorn Entity shall be required to provide any information that (x) it reasonably believes it may not provide to Buyer by reason of Legal Requirements, (y) the disclosure of which would reasonably be expected to jeopardize applicable attorney/client privilege or work product protections; provided that Buyer and Seller shall consider in good faith on a case-by-case basis whether such privilege or protection may be preserved by entering into a common interest agreement, joint defense agreement or similar arrangement, or (z) it is required to keep confidential by reason of contract or agreement with third parties, provided that in lieu of providing any such contract or agreement Longhorn provides Buyer with a reasonably detailed summary of the material terms thereof. All requests for site visits and related discussions or questions regarding procedures shall be coordinated with the chief financial officer or chief legal officer of Seller, unless such individual directs otherwise, and in no event shall Buyer or anyone on Buyer’s behalf communicate with any past, present or prospective supplier, customer, consultant, creditor, bank or employee of Seller or any Longhorn Entity, or with any Governmental Entity, concerning or related to the Transactions contemplated by this Agreement, unless Seller consents in advance to such communication, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the Acquired Corporations term “inspection” herein shall not encompass, and neither Buyer nor its Representatives shall be entitled to conduct (except as may be consented to in writing by Seller in its sole discretion), any Phase I review (whether conducted pursuant to applicable ASTM standards or otherwise) or any invasive, surface or subsurface testing or sampling, whether contemplated by any on-site investigation conducted in accordance with the current ASTM standards for the conduct of a Phase II on-site investigation or otherwise, including any soil borings, hand borings, geoprobes, test pits or monitoring wxxxx. IN CONNECTION WITH ANY ENVIRONMENTAL DUE DILIGENCE, SUBJECT TO SECTIONS 7.2(d) and 7.2(f)(vii), BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD SELLER, THE LONGHORN ENTITIES AND EACH OF THE BUYER INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES (AS DEFINED IN SECTION 10.2(a)(i) AND BELOW IN THIS SECTION 5.1) ARISING OUT OF OR RELATING TO THE DUE DILIGENCE CONDUCTED BY, BUT ONLY TO THE EXTENT CAUSED BY, BUYER, BUYER’S AFFILIATES OR ANY PERSON ACTING ON BUYER’S OR ITS AFFILIATES’ BEHALF, IN CONNECTION WITH ANY REAL PROPERTY SITE VISITS, REAL PROPERTY SITE INSPECTIONS AND ANY SAMPLING OF ANY ENVIRONMENTAL MEDIA FROM ANY REAL PROPERTY (IF AND TO THE EXTENT SELLER CONSENTS TO SUCH ACTIVITIES). Without limiting the foregoing, for purposes of this Section 5.1, “Damages” includes demands, claims, lawsuits, causes of action, losses, investigations and other proceedings, and other elements of “Damages” related thereto, brought by or asserted by the Longhorn Entities’ customers and the owners of any affected Leased Real Property. Buyer shall, and shall cause its Representatives to, in connection with the respective Representatives conduct of the Acquired Corporations due diligence investigations described in this Section 5.1, comply fully with all rules, regulations, policies and instructions reasonably issued by Seller or the Longhorn Entities and provided to Buyer regarding such Person’s actions while upon, entering or leaving any Real Property. Buyer shall not, and shall cause its Representatives not to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation day-to-day operations of the business of the Acquired Corporations. Nothing herein shall require Business in conducting any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)due diligence activities.
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Representatives and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementAgreement dated March 21, dated October 19, 20202019, as amended by that Amendment No. 1April 22, effective as of July 302019, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations Company to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, Company; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Company, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompany, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany, and shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require the Company to permit any inspection or testing, or to disclose any information, that in the reasonable judgement of the Acquired Corporations Company would be detrimental to the Company’s business or operations nor shall anything herein require the Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement or fiduciary duty (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and Company has used their reasonable best efforts to permit provide such information in a way that does not contravene applicable Legal Requirements or fiduciary duties); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Company determines doing so may be reasonably required for the Board purpose of Directors complying with applicable Antitrust Laws or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation ChangeInvestment Screening Laws. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Confidentiality Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30June 2, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Clearlake Capital Group, L.P. (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 4.1 shall be directed to the executive officer or other Person designated by the Company.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cornerstone OnDemand Inc)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations Company to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, Company; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Company, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompany, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent or binding confidentiality agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have Company has reasonably cooperated with Parent and used their reasonable best efforts to permit such inspection of or to disclose such information on a basis that does not contravene any applicable Legal Requirement or confidentiality agreement); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, and disclosure may be limited to external counsel for Parent, to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Company determines that doing so is reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated April 13, dated October 192018, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Firmenich, SA (the “Confidentiality Agreement”). All requests for information made pursuant to this Section 5.1 shall be directed to the executive officer or other Person designated by the Company.
Appears in 1 contract
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Section 7.1 in accordance with Article 8 (the “Pre-Closing Period”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations shallCompany and Parent shall each, and shall cause each of their respective Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives other party with reasonable access during normal business hours of the Company to the Company’s designated Representativesits personnel, properties tax and accounting advisers and assets and and, subject to applicable Legal Requirements, to all existing books, records, Tax Returns, and other documents and information relating to the Acquired Corporationssuch Entity or any of its Subsidiaries, and promptly provide Parent and Parent’s Representatives with all in each case as reasonably requested information regarding by Parent or the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as shall not to unreasonably interfere with the normal operation business or operations of the business party providing such access, as the case may be; and (b) provide the Representatives of the Acquired Corporationsother party with such copies of the existing books, records, Tax Returns, and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Company, as the case may be, subject to applicable Legal Requirements. Nothing herein During the Pre-Closing Period, the Company shall require permit Parent’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company’s financial statements and the internal controls of the Company to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its post-Closing obligations under the Sxxxxxxx-Xxxxx Act, the Exchange Act and the rules and regulations relating thereto. During the Pre-Closing Period, Parent shall, and shall cause the Representatives of each of Parent to, permit the Company’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of Parent responsible for the Parent’s financial statements and the internal controls of the Parent Entities to discuss such matters as the Company may deem necessary or appropriate in order to enable post-closing management of Parent and the Surviving Company to satisfy its post-Closing obligations under the Sxxxxxxx-Xxxxx Act, the Exchange Act and the rules and regulations relating thereto. Without limiting the generality of any of the Acquired Corporations foregoing, during the Pre-Closing Period, subject to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (shall each promptly provide the “Confidentiality Agreement”)other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of the Company, Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 1 contract
Samples: Asset Contribution and Separation Agreement (Alliqua BioMedical, Inc.)
Access and Investigation. During Between the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”)Date, upon reasonable advance notice to the CompanySeller shall afford Buyer and its representatives, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of and upon reasonable notice to Seller, access to Seller's operational and functional managers who have direct responsibility for the Company Products, solely to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information extent relating to the Acquired Corporations, Purchased Assets (other than the Transferred Contracts) and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business solely for purposes of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably requestBuyer's transition planning; provided, however, that any in no event shall such access unreasonably interrupt Seller's business operations or conflict with Seller's proprietary or competitive business interests, which, for the avoidance of doubt, shall be conducted at Parent’s expenseinclude any interest required to comply with applicable Legal Requirements, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require preserve any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any applicable attorney-client privilege, or other legal privilege (so long as or contractual third-party confidentiality obligations; and provided, further, that in no event shall Buyer's satisfaction with the Acquired Corporations have reasonably cooperated with Parent to permit such inspection results of or to disclose such information on transition planning be a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure condition precedent to the extent not prohibited by Legal Requirements) Closing. Any access or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed investigation pursuant to this Section 4.15.2 shall be conducted in such manner as to comply with all applicable competition and antitrust Legal Requirements and all confidentiality requirements under any contracts, Parent agreements or other arrangements with any third-party, and not to interfere unreasonably with the conduct of the operations of Seller. No investigation by Buyer or other information received by Buyer shall comply withoperate as a waiver or otherwise affect any representation, warranty, covenant or agreement given or made by Seller in this Agreement. After the Closing, Buyer shall, and shall instruct Parent’s Representatives cause its Affiliates and their respective employees and agents to, subject to comply withany Legal Requirements and any limitations that are reasonably required to preserve any applicable attorney-client privilege or legal or contractual third-party confidentiality obligations, all (i) afford Seller and its Affiliates and their respective employees and agents reasonable access, during normal business hours and upon reasonable prior notice, to the Purchased Assets and Buyer's and its Affiliates' properties, contracts, books and records and other documents and data and (ii) make Buyer's and its Affiliates' employees reasonably available to Seller and its Affiliates, in each case, to the extent reasonably requested by Seller in connection with (A) any item for which indemnification is being sought pursuant to this Agreement or any other Transaction Document, (B) any good faith effort of Seller or any of its obligations Affiliates to enforce any of its rights under this Agreement or any other Transaction Document, (C) any inquiry directed to Seller or its Affiliates from any Governmental Body, or any response or submission by Seller or its Affiliates to any Governmental Body, with respect to (I) the Confidential Disclosure AgreementProducts, dated October 19(II) the Purchased Assets, 2020(III) this Agreement or any other Transaction Document or (IV) solely with respect to the Transferred Employees, as amended any other matter with respect to which any Transferred Employee would reasonably be expected to have knowledge in connection with or relating to their employment with Seller or its Affiliates or (D) any Proceeding brought by that Amendment Noor against Seller or its Affiliates with respect to (I) the Products, (II) the Purchased Assets, (III) this Agreement or any other Transaction Document or (IV) solely with respect to the Transferred Employees, any other matter with respect to which any Transferred Employee would reasonably be expected to have knowledge in connection with or relating to their employment with Seller or its Affiliates. 1After the Closing, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022Seller shall, and Amendment No. 4shall cause its Affiliates and their respective employees and agents to, dated as subject to any Legal Requirements and any limitations that are reasonably required to preserve any applicable attorney-client privilege or legal or contractual third-party confidentiality obligations, (i) afford Buyer and its Affiliates and their respective employees and agents reasonable access, during normal business hours and upon reasonable prior notice, to Seller's and its Affiliates' properties, contracts, books and records and other documents and data and (ii) make Seller's and its Affiliates' employees reasonably available to Buyer and its Affiliates, in each case, to the extent reasonably requested by Buyer in connection with (A) any item for which indemnification is being sought pursuant to this Agreement or any other Transaction Document, (B) any good faith effort of August 30Buyer or any of its Affiliates to enforce any of its rights under this Agreement or any other Transaction Document, 2023 and effective as of January 1(C) any inquiry directed to Buyer or its Affiliates from any Governmental Body, 2023or any response or submission by Buyer or its Affiliates to any Governmental Body, with respect to (I) the Products, (II) the Purchased Assets, (III) this Agreement or any other Transaction Document or (IV) any Transferred Employee or (D) any Proceeding brought by and between or against Buyer or its Affiliates with respect to (I) the Company and Parent Products, (II) the “Confidentiality Agreement”)Purchased Assets, (III) this Agreement or any other Transaction Document or (IV) any Transferred Employee.
Appears in 1 contract
Access and Investigation. During From the period from the execution and delivery date of this Agreement until the earlier to occur of the Effective Time and the valid Closing Date or termination of this Agreement pursuant to Section 7.1 Agreement, (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations a) Weatherford shall, and shall cause the respective Asset Sellers and the Target Companies to allow Acquiror and its Representatives of the Acquired Corporations toreasonable access, provide Parent and Parent’s Representatives with at all reasonable access times during normal business hours of the Company hours, upon reasonable notice, to the Company’s designated officers, employees and other personnel, attorneys, accountants and other Representatives, properties records and assets files, correspondence, audits and properties, as well as to all existing books, records, documents and information relating to commitments, contracts, titles and financial position and results of operations, or otherwise pertaining to the Acquired Corporations, operations and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business affairs of the Acquired Corporations Business; and such additional financial, operating and other data and information regarding (b) Weatherford shall provide Acquiror with monthly sales summary statements by the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under fifteenth (15th) day of each month (beginning the supervision first full month after the execution of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counselthis Agreement) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure relating to the extent not prohibited preceding month setting forth the monthly sales by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or dollars and by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract)country. Notwithstanding the foregoing, nothing in this Section 4.1 neither Weatherford nor any of the Asset Sellers or the Target Companies shall require an Acquired Corporation be required to disclose provide any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed that (x) the Transactions, or any similar transaction involving an Acquired Corporationit reasonably believes it may not provide to Acquiror by reason of applicable Law, (y) any Acquisition Proposal the disclosure of which would reasonably be expected to jeopardize applicable attorney/client privilege or work product protections; provided that Acquiror and Weatherford shall consider in good faith on a case-by-case basis whether such privilege or protection may be preserved by entering into a common interest agreement, joint defense agreement or similar arrangement, or (z) it is required to keep confidential by reason of contract or agreement with third parties, provided that in lieu of providing any such contract or agreement Weatherford provides Acquiror with a Company Adverse Recommendation Changereasonably detailed summary of the material terms thereof. With All requests for site visits and related discussions or questions regarding procedures shall be coordinated with the Steven MxXxxxxx xx Xxxxherford, unless such individual directs otherwise, and in no event shall Acquiror or anyone on Acquiror’s behalf communicate with any past, present or prospective supplier, customer, consultant, employee or agent of the Business, or with any Governmental Authority (other than with respect to approvals under competition laws contemplated hereby), concerning or related to the information disclosed pursuant transactions contemplated hereby, unless Weatherford consents in advance to such communication, which consent shall not be unreasonably withheld, conditioned or delayed, except as required by Law and in connection with any required filings with any Governmental Authority. For the avoidance of doubt, the term “inspection” herein shall not encompass, and neither Acquiror nor its Representatives shall be entitled to conduct (except as may be consented to in writing by Weatherford in its sole discretion), any invasive, surface or subsurface testing or sampling, for the conduct of a “Phase II” on-site investigation or otherwise. IN CONNECTION WITH ANY ENVIRONMENTAL DUE DILIGENCE, ACQUIROR SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD WEATHERFORD AND ITS AFFILIATES HARMLESS FROM AND AGAINST ANY AND ALL LOSSES ARISING OUT OF OR RELATING TO THE DUE DILIGENCE CONDUCTED BY ACQUIROR, ACQUIROR’S AFFILIATES OR ANY PERSON ACTING ON ACQUIROR’S OR ITS AFFILIATES’ BEHALF, IN CONNECTION WITH ANY REAL PROPERTY SITE VISITS, REAL PROPERTY SITE INSPECTIONS AND ANY SAMPLING OF ANY ENVIRONMENTAL MEDIA FROM ANY REAL PROPERTY (IF AND TO THE EXTENT WEATHERFORD CONSENTS TO SUCH ACTIVITIES), EXCEPT TO THE EXTENT OF ANY LOSSES IS CAUSED BY WEATHERFORD OR ITS AFFILIATES. Acquiror shall, and shall cause its Representatives to, in connection with the conduct of the due diligence investigations described in this Section 4.1, Parent shall comply withfully with all rules, regulations, policies and shall instruct Parentinstructions reasonably issued by Weatherford and provided to Acquiror regarding such Person’s Representatives to comply withactions while upon, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)entering or leaving any Real Property.
Appears in 1 contract
Samples: Acquisition Agreement (Weatherford International PLC)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesRepresentatives and to properties, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if to the extent (i) such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (ix) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (iiy) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iiiz) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent ) or Parent’s Representatives if (ii) such information relates to the applicable portions of is included in the minutes of the meetings of the Board of Directors or its committees and relates to the discussion by the Board of Directors or any applicable committee thereof of the Transactions or any similar transaction between the Company and any other Person (including any applicable portions of presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the TransactionsDirectors, whether in connection with a specific meeting, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeotherwise relating to such subject matter). With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July June 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Decibel Therapeutics, Inc.)
Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Representatives and assets and properties, and to all existing books, records, Tax Returns, work papers, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating operating, Tax and other data and information regarding the Acquired Corporations, Corporations as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent would (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 5.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the minutes of the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any portions of presentations or other materials prepared by or for the Board of Directors or such committee thereofthereof directly and solely related thereto) where the Board of Directors or such committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporationthe evaluation of strategic alternatives leading up to the Transactions, (y) any Acquisition Proposal received after the date of this Agreement or (z) a Company Adverse Recommendation Change; provided that in the case of any of clauses (x), (y) and (z), this Section 5.1 shall not apply to any information required to be disclosed or furnished to Parent and Purchaser pursuant to Section 5.3 or 6.1, and the disclosure of such information shall be governed by Section 5.3 or 6.1 respectively. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all applicable Legal Requirements and all of its obligations under the Confidential Disclosure Agreement, Confidentiality Agreement dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 110, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Intercept Pharmaceuticals, Inc.)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon on reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the other Acquired Companies and the respective Representatives of the Acquired Corporations Companies to, provide Parent and Parent’s Representatives with (a) reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Acquired Companies’ assets and assets Representatives and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding Companies in the business possession of the Acquired Corporations Companies, and (b) copies of such additional financialexisting books, operating records, documents and other data information, in each case of the foregoing clauses (a) and information regarding (b), to the Acquired Corporations, as extent reasonably requested by Parent may reasonably requestfor any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access (i) shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies or create a material risk of damage or destruction to any assets or property, (ii) may be subject to restrictions or limitations imposed by the Acquired Companies in connection with the health or safety of any of the Acquired Companies’ Representatives or commercial partners, and (iii) shall be subject to the Acquired Companies’ reasonable security measures and insurance requirements. Nothing herein shall require any of the Acquired Corporations Companies to provide Parent or Parent’s Representatives with access to, or to disclose any information to Parent or Parent’s Representatives or provide Parent or Parent’s Representatives with copies of, any books, records, documents or information if (A) such access, disclosure or provision would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (iI) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection access to or disclosure of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (iiII) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene fiduciary duty or any Contract entered into prior to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement Agreement, (so long as B) such books, records, documents or information is reasonably pertinent to Legal Proceedings in which the Acquired Corporations have reasonably cooperated with Parent Company or any of its Affiliates, on the one hand, and used Parent, Merger Sub or any of their reasonable best efforts respective Affiliates, on the other hand, are adverse parties, or (C) subject to permit disclosure to and without limiting the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions obligations of the minutes Company pursuant to Section 5.4, such books, records, documents or information relate to (I) the negotiation or execution of this Agreement, or the meetings actions or discussions of the Board of Directors (or any committee thereof thereof) with respect thereto, or (including II) any presentations Acquisition Proposal (whether made or other materials prepared by received before or for after the execution of this Agreement) or Company Adverse Recommendation Change, or the actions or discussions of the Board of Directors (or such any committee thereof) where with respect thereto. No investigation by Parent or its Representatives shall affect the Board of Directors or committee thereof discussed (x) the TransactionsCompany’s representations, warranties, covenants, or any similar transaction involving an Acquired Corporationagreements contained herein, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changelimit or otherwise affect the remedies available to Parent or Merger Sub pursuant to this Agreement. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s cause its Subsidiaries and direct its and their respective Representatives to comply with, all of its Parent’s obligations under the Confidential that certain Non-Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1March 21, 2023, by and as amended, between the Company and Parent (the “Confidentiality Agreement”). During the Pre-Closing Period, the Company further agrees to reasonably cooperate with Parent and its Representatives with respect to communications to, and to organize and facilitate meetings with, customers, suppliers and other key business relations of the Acquired Companies as Parent or Merger Sub may reasonably request.
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of Between the date of this Agreement and the Closing Date, and upon reasonable advance notice received from Buyer, Seller shall (so long and Seller shall cause Unique Fabrications to) (a) afford Buyer and its Representatives and prospective lenders and their Representatives (collectively, "Buyer Group") full and free access, during regular business hours, to Seller's and Unique Fabrications' personnel, properties (including subsurface testing), Contracts, Governmental Permits, books and Records and other documents and data, such rights of access to be exercised in a manner that does not unreasonably interfere with the operations of Seller or Unique Fabrications; (b) furnish Buyer Group with copies of all such Contracts, Governmental Permits, books and Records and other existing documents and data as the Acquired Corporations have Buyer may reasonably cooperated request; (c) furnish Buyer Group with Parent such additional non-privilege, financial, legal, environmental, operating and used their reasonable best efforts to permit disclosure other relevant data and information as Buyer may reasonably request; and (d) otherwise cooperate and assist, to the extent permitted reasonably requested by such Contract). Notwithstanding the foregoingBuyer, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions with Buyer's investigation of the minutes properties, assets and financial condition related to Seller or Unique Fabrications. In addition, Buyer shall have the right to have the Real Property and Tangible Personal Property inspected by Buyer Group, at Buyer's sole cost and expense, for purposes of determining the physical condition and legal characteristics of the meetings of Real Property and Tangible Personal Property. In the Board of Directors or any committee thereof (including any presentations event subsurface or other materials prepared destructive testing is recommended by any of Buyer Group, Buyer shall be permitted to have the same performed and Buyer shall be responsible for all costs associated with the testing, including without limitation the disposal of soils or for other media generated during the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply withtesting, and shall instruct Parent’s Representatives to comply withdefend, indemnify and hold harmless Seller and Unique Fabrications for all Damages as a result of its obligations under such testing. Without limiting the Confidential Disclosure generality of the foregoing and as soon as practicable after the date of this Agreement, dated October 19Seller shall (and Seller shall cause Unique Fabrications to) provide Buyer with all Seller's and Unique Fabrications' payroll information in possession of Seller, 2020, as amended by that Amendment No. 1, effective as Unique Fabrications and the payroll processor of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, Seller and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)Unique Fabrications.
Appears in 1 contract
Samples: Asset Purchase Agreement (Champion Enterprises Inc)
Access and Investigation. During Subject to applicable Law, during the period from the execution and delivery of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Sellers shall, and shall cause the respective Acquired Companies and their Representatives of the Acquired Corporations to: (a) afford Buyer and its Representatives (collectively, provide Parent and Parent’s Representatives with “Buyer Group”) reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies’ personnel, properties, Contracts, 37 Government Authorizations, books and promptly provide Parent records and Parent’s Representatives other documents and data; (b) furnish Buyer Group with copies of all such Contracts, Government Authorizations, books and records and other existing documents and data as Buyer may reasonably requested information regarding the business of the Acquired Corporations and request; (c) furnish Buyer Group with such additional financial, operating and other relevant data and information regarding the Acquired Corporations, as Parent Buyer may reasonably request; (d) provide reasonable access to the Material Suppliers and Material Customers in a manner as shall be reasonably determined by the Sellers’ Representative and (e) otherwise cooperate and assist, to the extent reasonably requested by Buyer, with Buyer’s investigation of the properties, assets and financial condition related to the Acquired Companies; provided, however, that any such access investigation shall be conducted at Parent’s expenseduring normal business hours upon reasonable advance notice to the Sellers’ Representative, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business operations of the Acquired CorporationsCompanies. Nothing herein Notwithstanding anything to the contrary in this Agreement, neither Sellers nor any Acquired Company shall require any of the Acquired Corporations be required to disclose any information to Parent Buyer if such disclosure would, (x) in the Sellers’ Representative’s reasonable belief, cause significant competitive harm to the Acquired Companies and their respective businesses if the transactions contemplated by this Agreement are not consummated; or (y) in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) ’s opinion, jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Law, fiduciary duty or agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure Agreement. Prior to the extent permitted by such Contract). Notwithstanding Closing, without the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions prior written consent of the minutes Sellers’ Representative, which may be withheld for any reason, Buyer shall not contact any suppliers to, or customers of, the Company and Buyer shall have no right to perform invasive or subsurface investigations of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Real Property. All requests for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed made pursuant to this Section 4.1, Parent 6.2 shall comply withbe directed to the Person designated by the Company in a notice given to Buyer, and all such information shall instruct Parent’s Representatives to comply with, all be governed by the terms of its obligations under Section 6.4 and the Confidential Mutual Non-Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 20232016, by and between the Company ValuePenguin OpCo and Parent Buyer (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement until and ending as of the earlier of the Effective Time and or the valid termination of this Agreement pursuant to Section 7.1 in accordance with Article 8 (the “Pre-Closing Period”), subject to applicable Legal Requirements (including attorney-client privilege and work product doctrine) and the terms of any confidentiality restrictions under Contracts of a party as of the date hereof, upon reasonable advance notice to the Company, the Acquired Corporations shallCompany and Parent shall each, and shall cause each of their respective Subsidiaries to: (a) provide the respective Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives other party with reasonable access during normal business hours of the Company to the Company’s designated Representativesits personnel, properties tax and accounting advisers and assets and and, subject to applicable Legal Requirements, to all existing books, records, Tax Returns, and other documents and information relating to the Acquired Corporationssuch Entity or any of its Subsidiaries, and promptly provide Parent and Parent’s Representatives with all in each case as reasonably requested information regarding by Parent or the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as shall not to unreasonably interfere with the normal operation business or operations of the business party providing such access, as the case may be; and (b) provide the Representatives of the Acquired Corporationsother party with such copies of the existing books, records, Tax Returns, and other documents and information relating to such Entity and its Subsidiaries as reasonably requested by Parent or the Company, as the case may be, subject to applicable Legal Requirements. Nothing herein During the Pre-Closing Period, the Company shall require permit Parent’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of the Company responsible for the Company’s financial statements and the internal controls of the Company to discuss such matters as Parent may deem necessary or appropriate in order to enable Parent to satisfy its post-Closing obligations under the Xxxxxxxx-Xxxxx Act and the rules and regulations relating thereto. During the Pre-Closing Period, Parent shall, and shall cause the Representatives of each of Parent to, permit the Company’s senior officers to meet, upon reasonable notice and during normal business hours, with the chief financial officer and other officers of Parent responsible for the Parent’s financial statements and the internal controls of the Parent Entities to discuss such matters as the Company may deem necessary or appropriate in order to enable post-closing management of Parent and the Surviving Company to satisfy its post-Closing obligations under the Xxxxxxxx-Xxxxx Act and the rules and regulations relating thereto. Without limiting the generality of any of the Acquired Corporations foregoing, during the Pre-Closing Period, subject to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (shall each promptly provide the “Confidentiality Agreement”)other with copies of any notice, report or other document filed with or sent to any Governmental Body on behalf of the Company, Parent or Merger Sub in connection with the Merger or any of the other Contemplated Transactions.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Wireless Ronin Technologies Inc)
Access and Investigation. During Subject to the Confidentiality Agreement, during the period from commencing on the execution Agreement Date and delivery of this Agreement until ending on the earlier of (a) the Effective Time Closing and (b) the valid termination of this Agreement pursuant to Section 7.1 (such period being referred to herein as the “Pre-Closing Interim Period”“), upon reasonable advance notice to Seller and the Company, the Acquired Corporations Company shall, and shall cause the their respective Representatives of the Acquired Corporations to, : (i) provide Parent Buyer and Parent’s its Representatives with reasonable access during normal business hours of the Company upon reasonable advance prior written notice to the Company’s designated and Seller’s Representatives, properties and assets and to all existing properties, books, records, non-income Tax Returns, material operating and financial reports, work papers, assets, executive officers, Contracts and other documents and information to the extent relating to the Acquired CorporationsCompany and the Company Subsidiaries; and (ii) provide Buyer and its Representatives with such copies of the books, records, non-income Tax Returns, work papers, Contracts and other documents and information to the extent relating to the Company and the Company Subsidiaries, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding to the Acquired Corporationsextent relating to the Company and the Company Subsidiaries, as Parent Buyer may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with Information obtained by Buyer or its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.15.1 will constitute “Evaluation Material” under the Confidentiality Agreement and will be subject to the provisions of the Confidentiality Agreement. Nothing in this Section 5.1 will require Seller, Parent shall comply withthe Company or any Company Subsidiary to permit any inspection, and shall instruct Parentor to disclose any information, that in the reasonable judgment of Seller would (A) violate any of Seller’s Representatives to comply with, all of or its Affiliates’ respective obligations under any confidentiality agreement, (B) result in a violation of applicable Law (including ITAR) or (C) result in loss of legal protection, including the Confidential Disclosure Agreementattorney client privilege and work product; provided in each case that Seller provides Buyer with the basis for withholding such documents and, dated October 19in the case of clause (A), 2020if requested by Buyer, as amended by that Amendment Nouses commercially reasonable efforts to get all requisite approval to make such information available to Buyer. 1In no event shall Buyer, effective as its Affiliates or their respective Representatives contact any customer or supplier of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (or the “Confidentiality Agreement”)Company Subsidiaries with respect to the Transactions without the prior written consent of the Chief Executive Officer or General Counsel of Seller.
Appears in 1 contract
Samples: Stock Purchase Agreement (Kratos Defense & Security Solutions, Inc.)
Access and Investigation. During the period from The Seller Parties shall each ensure, subject to compliance with applicable Law, that, and shall each use their reasonable best efforts at all times after the execution and delivery of this Agreement until and prior to the earlier of the Effective Time and the valid termination of this Agreement pursuant Closing to Section 7.1 (the “Pre-Closing Period”)ensure that their Representatives, upon reasonable advance notice to the Company, the Acquired Corporations shall, by Purchaser and shall cause the respective Representatives of the Acquired Corporations to, at Purchaser’s sole expense: (a) provide Parent Purchaser and Parent’s its Representatives with reasonable access during normal business hours of the Company to the Company’s designated their Representatives, properties personnel and assets and to all existing books, records, Tax Returns, Business Contracts, work papers and other documents and information relating to the Acquired CorporationsBusiness, the Purchased Assets and promptly the Assumed Liabilities as Purchaser may reasonably request; (b) provide Parent Purchaser and Parent’s its Representatives with all such copies of existing books, records, Tax Returns, Business Contracts, work papers and other documents and information relating to the Business, the Purchased Assets and the Assumed Liabilities as Purchaser may reasonably requested information regarding the business of the Acquired Corporations request; and (c) compile and provide Purchaser and its Representatives with such additional financial, operating and other data and information regarding relating to the Acquired CorporationsBusiness, the Purchased Assets and the Assumed Liabilities as Parent Purchaser may reasonably request; provided, however, that any . Any such access and availability shall include, without limitation, access for Purchaser and its Representatives, at Purchaser’s sole cost and expense, to conduct any site assessment or inspection at the Leased Real Property and physical inspections of the Purchased Assets, as Purchaser may reasonably request. Any investigation pursuant to this Section 6.2 shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and during normal business hours in such a manner as not to interfere unreasonably interfere with the normal operation conduct of the business Business or any other businesses of the Acquired CorporationsSeller Parties and shall comply with the reasonable security, data privacy and data protection and insurance requirements of Seller Parties. Nothing herein Notwithstanding anything to the contrary in this Agreement, the Seller Parties shall require any of the Acquired Corporations not be required to disclose any information to Parent Purchaser or its Representatives if such disclosure would, as determined in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent good faith by such Seller Party: (i) jeopardize any attorney-client privilege, protection under the work product doctrine or other legal privilege (so long as the Acquired Corporations have unless Purchaser is willing to enter into a joint defense agreement that is reasonably cooperated with Parent satisfactory to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect theretoSeller Parent), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure Law or binding agreement entered into prior to the extent not prohibited by Legal Requirements) or date hereof, (iii) contravene relate to any Contract consolidated, combined or similar Tax Return filed by Seller with any of its Affiliates or any of their respective predecessor entities (provided, however, that relevant information included therein relating to which an Acquired Corporation is a party the Business or by which an Acquired Corporation is bound as the Purchased Assets shall be extracted and provided to Purchaser), (iv) prior to the Closing, provide access to personnel records of the date Transferred Employees, including records relating to individual performance or evaluation records, medical histories or other information the disclosure of which would reasonably be expected to subject Seller or any of its Subsidiaries to risk of liability, or (v) relate to any potential sale, transfer or other disposition involving the Business other than the Asset Purchase (including as part of a sale, transfer or other disposition of Seller Parent). Prior to the Closing, Purchaser shall not contact or permit any of its controlled Affiliates or Representatives to contact, any of the customers, suppliers, distributors, partners or employees of the Business or the Seller Parties without the consent of Seller (not to be unreasonably withheld, conditioned or delayed), and in any event without the presence of a representative of Seller if requested by Seller Parent; provided that Purchaser shall be permitted to contact the Business Employees for the purposes of carrying out the transactions contemplated by this Agreement (so long as or in the Acquired Corporations have reasonably cooperated Ordinary Course of Business in connection with existing commercial relationships between Purchaser, Seller Parent and used and/or their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)respective Affiliates.
Appears in 1 contract
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations shall, Company shall and shall cause the respective Representatives of other Acquired Companies and the Acquired Corporations Companies’ Representatives to, provide Parent and Parent’s Representatives with reasonable access (including by electronic means) during normal business hours of the Company to the Company’s designated Acquired Companies’ Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Company and its Subsidiaries and such additional financial, operating and other data and information regarding the Acquired CorporationsCompany and its Subsidiaries, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion good faith belief of the Acquired Companies (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto, including entering into common interest or joint defense agreements), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) or ); provided, however, in the case of clause (iii) contravene any Contract ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Acquired Companies (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 3019, 20212019, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Ultimate Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Stemline Therapeutics Inc)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to all of the Company’s designated RepresentativesAcquired Corporations’ personnel, properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations (including financial schedules and accounting records); and (b) promptly provide Parent and Parent’s Representatives with all requested information in the possession of any of the Acquired Corporations regarding the business of the Acquired Corporations, including copies of the existing books, records, Tax Returns, Company Contracts, work papers and other documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto)privilege, (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated with Company or its Affiliates is a party) or (iii) result in the disclosure of any trade secrets of third parties. Without limiting the foregoing, in the event that the Company does not disclose information in reliance on the preceding sentence, it shall provide notice to Parent that it is withholding such information and used their shall use its reasonable best efforts to permit disclosure communicate, to the extent permitted by feasible, the applicable information in a way that would not violate the applicable Legal Requirements, Contract or obligation or risk waiver of such Contract)privilege. Notwithstanding Without limiting the foregoing, nothing in generality of this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates 4.1, during the Pre-Closing Period the Company will furnish to the applicable portions Parent promptly after becoming available (to the extent such items become available), monthly financial statements, including an unaudited balance sheet, income statement and statement of cash flows for each month through the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or Closing Date as it may prepare for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changemanagement’s internal use. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct cause Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, Confidentiality Agreement by and between the Parent and Company and Parent dated June 4, 2013 (as amended from time to time, the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Hastings Entertainment Inc)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Article 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Subsidiaries and Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Company and its Subsidiaries and their respective Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably requestrequest (other than any books, records, documents and information relating to the negotiation and execution of this Agreement, or, except as expressly provided in Section 5.03 and Section 6.01, any Acquisition Proposal or relating to any deliberation of the Board of Directors or any duly authorized committee thereof regarding any Acquisition Proposal or Company Adverse Change Recommendation), in each case for any reasonable purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Any such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by such Legal Requirements) Requirement or party to such Contract); provided, however, in the case of clause (iii) contravene any Contract ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.15.01, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Mutual Non-Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18December 15, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”). Notwithstanding anything to the contrary herein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under the applicable Legal Requirements (including any COVID-19 Measures).
Appears in 1 contract
Samples: Agreement and Plan of Merger (CymaBay Therapeutics, Inc.)
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Article 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Subsidiaries and Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Company and its Subsidiaries and their respective Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request, in each case for any reasonable purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Any such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) Requirements or the contractual counterparty); provided, however, in the case of clause (iii) contravene any Contract ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.15.01, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Mutual Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 20232019 and as amended thereafter, by and between the Company and Parent (the “Confidentiality Agreement”). Notwithstanding anything to the contrary herein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under the applicable Legal Requirements (including any COVID-19 Measures).
Appears in 1 contract
Access and Investigation. During (a) Subject to Section 5.14 and subject further to that certain Clean Team Agreement dated November 5, 2018 with respect to Competitively Sensitive Information, as defined therein, which definition is incorporated herein and made a part hereof, during the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 7 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Companies shall, and shall cause the respective Representatives of the Acquired Corporations Companies to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties offices, facilities, real property, designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Nothing herein shall require any of the Acquired Corporations Companies to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its discretion, upon the advice of the Company’s outside counsel) , and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ; or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal RequirementsRequirements (including providing such information under the terms of the Clean Team Agreement if applicable) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”contractual counterparty).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Gaming Partners International CORP)
Access and Investigation. During Subject to the Confidentiality Agreement, during the period from commencing on the execution Agreement Date and delivery of this Agreement until ending on the earlier of (a) the Effective Time and (b) the valid termination of this Agreement pursuant to Section 7.1 8.1 (such period being referred to herein as the “Pre-Closing Interim Period”), the Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, Company from Parent: (i) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing the Company Subsidiaries’ books, records, Tax Returns, material operating and financial reports, work papers, assets, officers, personnel, offices and other facilities, Contracts and other documents and information relating to the Acquired Corporations, Company and promptly the Company Subsidiaries and (ii) provide Parent and Parent’s Representatives with all reasonably requested information regarding the business such copies of the Acquired Corporations books, records, Tax Returns, work papers, Contracts and other documents and information relating to the Company and the Company Subsidiaries, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompany and the Company Subsidiaries, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require Company or create material risk of damage or destruction to any material assets or property of the Acquired Corporations Company. Any such access shall be subject to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion security measures and insurance requirements and shall not include invasive testing. Information obtained by Merger Sub or Parent pursuant to this Section 6.1 will constitute “Evaluation Material” under the Confidentiality Agreement and will be subject to the provisions of the Confidentiality Agreement. Nothing in this Section 6.1 will require the Company to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company would: (after consultation A) violate any of its or its Affiliates’ respective obligations with its outside counselrespect to confidentiality; (B) and after notice to Parent result in a violation of applicable Law; (iC) jeopardize any result in the loss of a legal protection afforded by the attorney-client privilege or other legal privilege the attorney work product doctrine or similar privilege; or (D) is commercially sensitive (as determined by the Company in its sole discretion), in each case, so long as the Acquired Corporations have Company has reasonably cooperated with Parent to either permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent disclose such information subject to permit execution of a joint defense agreement in customary form, and/or limit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as external counsel of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure Parent. Notwithstanding anything to the extent permitted by such Contract). Notwithstanding the foregoing, nothing contrary in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to 6.1, the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of may satisfy its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended set forth above by that Amendment No. 1, effective as electronic means if physical access would not be permitted or reasonably practical in light of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)any COVID-19 Measures.
Appears in 1 contract
Samples: Agreement and Plan of Merger (TherapeuticsMD, Inc.)
Access and Investigation. During the period from the execution and delivery of this Agreement Date until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 9.1 (the “Pre-Pre- Closing Period”), upon reasonable advance notice to the CompanyCompany and subject to applicable logistical restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, the Acquired Corporations Company and its directors, employees and officers shall, and the Company shall cause the respective direct its other Representatives of the Acquired Corporations toCompany, (a) to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated RepresentativesAcquired Companies’ officers, properties employees, other personnel, and assets and to all existing books, records, documents books and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; records (provided, however, that any such access shall be conducted at Parent’s sole expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany) and (b) to furnish to Parent such financial and operating data and other information as Parent may reasonably request, provided, that Parent and its Representatives shall use such access and information solely for the purpose of the consummation of the Transactions and post-Closing integration planning or otherwise for purposes of exercising Parent’s rights or remedies under this Agreement. Nothing The foregoing notwithstanding, nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if the extent the disclosure of such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) information would jeopardize any attorney-client or other legal privilege or contravene any applicable Law (so long as including Antitrust Law); provided, that the Acquired Corporations have Company shall reasonably cooperated cooperate with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) thereto or contravene any such applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract)Law. Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed No investigation pursuant to this Section 4.16.1 shall affect, or be deemed to modify or waive, any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto or otherwise limit or affect the remedies available to Parent or Purchaser pursuant to this Agreement. All requests for access pursuant to this Section 6.1 must be directed to the Chief Business Officer of the Company or another person designated in writing by the Company. Notwithstanding anything herein to the contrary, Parent and Purchaser shall comply withnot, and shall instruct Parentcause their respective representatives not to, contact any partner, licensor, licensee, customer or supplier of the Company in connection with the Offer, the Merger or any of the other Transactions without the Company’s Representatives prior written consent (such consent not to comply withbe unreasonably withheld, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022conditioned or delayed), and Amendment No. 4, dated as of August 30, 2023 Parent and effective as of January 1, 2023, Purchaser acknowledge and agree that any such contact shall be arranged by and between with a representative of the Company and Parent (the “Confidentiality Agreement”)participating.
Appears in 1 contract
Samples: Tender and Support Agreement (Biodelivery Sciences International Inc)
Access and Investigation. During the period from commencing on the execution and delivery date of this Agreement and continuing until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Article 9 and the Closing (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Seller shall, and shall cause ensure that the respective Representatives of the Acquired Corporations tothereof: (a) promptly, upon reasonable advance written request (email being sufficient), provide Parent Purchaser and ParentPurchaser’s Representatives with reasonable access during normal business hours of the Company to the CompanySeller’s designated Representatives, personnel, assets, and properties and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCystinosis Business or any Transferred Asset or Licensed IP; and (b) promptly, upon reasonable advance written request (email being sufficient), provide Purchaser and promptly provide Parent and ParentPurchaser’s Representatives with all reasonably requested copies of such books, records, Tax Returns, work papers and other documents and information regarding relating to the business of the Acquired Corporations Cystinosis Business or any Transferred Asset or Licensed IP, and with such additional financial, operating and other data and other information regarding the Acquired CorporationsCystinosis ACTIVE/123404471.12 Business or any Transferred Asset or Licensed IP, as Parent Purchaser may reasonably request; provided. Without limiting the forgoing, howeverduring the Pre-Closing Period the Seller shall provide Purchaser with reasonable access to, that any such and shall make its employees reasonably available for, knowledge transfer, training sessions and general informational meetings, and the Seller shall provide information reasonably requested to facilitate Purchaser’s integration activities with respect to the Contemplated Transactions, including Purchaser performing activities as are reasonably necessary in order to ensure the orderly transition of the Transferred Assets and Assumed Liabilities from the Seller to Purchaser, effective from and after the Closing. All access provided during the Pre-Closing Period to Purchaser by the Seller shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein Seller, and solely at Purchaser’s expense; provided, however, that the Seller shall require not be required to permit any of the Acquired Corporations inspection or other access, or to disclose any information to Parent if the extent: (i) such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) judgment of the Seller and after notice to Parent Purchaser: (ia) result in the disclosure of any trade secrets of Third Parties; (b) violate any obligation of the Seller with respect to confidentiality, non-disclosure or privacy; (c) jeopardize any protections afforded to the Seller under the attorney-client privilege or other legal privilege the attorney work product doctrine; (so long as d) violate any Legal Requirement; provided, further, that the Acquired Corporations have reasonably cooperated with Parent Seller shall use its commercially reasonable efforts to obtain any required consents or make alternative arrangements to permit such inspection of inspection, access or to disclose such information on disclosure in a basis manner that does not waive such privilege with respect theretogive rise to the consequences referred to in the foregoing clauses (a) through (d), ; or (ii) contravene any applicable Legal Requirement (so long as without limiting the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to rights of Purchaser and the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as obligations of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoingSeller under Section 5.3, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of is included in the minutes of the meetings of the Board of Directors or its committees and relates to the discussion by the Board of Directors or any applicable committee thereof of the Contemplated Transactions or any similar transaction between the Seller and any other Person (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the TransactionsDirectors, whether in connection with a specific meeting, or otherwise relating to such subject matter); provided, further that any similar transaction involving an Acquired Corporationsuch access shall be afforded and any such information shall be furnished solely at Purchaser’s expense; provided, (y) further that any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect access to the information disclosed pursuant properties of the Seller shall be subject to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)their reasonable security measures.
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Corporations’ Representatives, properties personnel and assets assets, supervised conversations with customers and suppliers and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated with Company or its Affiliates is a party), provided that the Company shall use commercially reasonable efforts to obtain any Consents of third parties that are necessary to allow such information to be disclosed to Parent and used their its Representatives and shall otherwise use commercially reasonable best efforts to permit allow for such access or disclosure in a manner that does not result in a breach of this clause (ii) or (iii) result in the disclosure of any trade secrets of third parties; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated April 8, dated October 192013, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Vista Equity Partners III, LLC (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Corporations’ Representatives, properties personnel and assets assets, supervised conversations with customers and suppliers and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated with Company or its Affiliates is a party), provided that the Company shall use commercially reasonable efforts to obtain any Consents of third parties that are necessary to allow such information to be disclosed to Parent and used their its Representatives and shall otherwise use commercially reasonable best efforts to permit allow for such access or disclosure in a manner that does not result in a breach of this clause (ii) or (iii) result in the disclosure of any trade secrets of third parties; provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated August 10, dated October 192014, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Vista Equity Partners III, LLC (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Offer Acceptance Time and the valid termination of this Agreement pursuant to Section 7.1 8.1 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective Representatives of the Acquired Corporations to, : (a) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company Acquired Corporations to the Company’s designated Acquired Corporations’ Representatives, personnel, properties and assets and to all existing books, records, Contracts, Tax Returns, Employee Plans, work papers and other documents and information relating to the Acquired Corporations, ; and (b) promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Corporations, including copies of the existing books, records, Contracts, Tax Returns, Employee Plans, work papers and other documents and information relating to the Acquired Corporations, and with such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompany. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent Requirement, fiduciary duty or binding agreement entered into prior to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as including any confidentiality agreement to which the Acquired Corporations have reasonably cooperated with Company or its Affiliates is a party); provided, further, that information shall be disclosed subject to execution of a joint defense agreement in customary form, to external counsel for Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or reasonably required for the Board purpose of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changecomplying with applicable Antitrust Laws. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, ,all of its obligations under the Confidential Disclosure AgreementConfidentiality Agreement dated June 23, dated October 192014, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent Koninklijke Philips N.V. (the “Confidentiality Agreement”).
Appears in 1 contract
Access and Investigation. (a) During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 Article 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Subsidiaries and Representatives of the Acquired Corporations to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Company and its Subsidiaries and their respective Representatives, properties designated personnel and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request, in each case for any reasonable purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Any such access shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include invasive testing. Nothing herein shall require any of the Acquired Corporations Company to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), ) or (ii) contravene any applicable Legal Requirement or Contract (so long as the Acquired Corporations have Company has reasonably cooperated with Parent to permit disclosure to the extent not prohibited permitted by Legal Requirements) Requirements or (iii) contravene any Contract the contractual counterparty); provided, however, in the case of clause (ii), that the Parties shall cooperate in seeking to which an Acquired Corporation is find a party or by which an Acquired Corporation is bound as way to allow disclosure of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure such information to the extent permitted by such Contract). Notwithstanding doing so could reasonably (in the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions good faith belief of the minutes Company (after consultation with outside counsel)) be managed through the use of the meetings customary “clean room” arrangements pursuant to which non-employee Representatives of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or Parent could be provided access to such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Changeinformation. With respect to the information disclosed pursuant to this Section 4.1Section 5.01, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Mutual Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 20232019 and as amended thereafter, by and between the Company and Parent (the “Confidentiality Agreement”). Notwithstanding anything to the contrary herein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under the applicable Legal Requirements (including any COVID-19 Measures).
Appears in 1 contract
Access and Investigation. (a) During the period from commencing on the execution and delivery date of this Agreement and continuing until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 9 and the Effective Time (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Company shall, and shall cause the respective its Representatives and each of the Acquired Corporations toCompanies and their respective Representatives to (i) upon reasonable advance notice, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Acquired Companies’ Representatives, properties personnel and assets and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired Corporations, Companies and promptly (ii) provide Parent and Parent’s Representatives with all reasonably requested copies of such books, records, Tax Returns, work papers and other documents and information regarding the business of relating to the Acquired Corporations Companies, and with such additional financial, operating and other data and other information regarding the Acquired CorporationsCompanies, as Parent may reasonably request; provided, however, that any . Any such access and disclosure shall at all times be managed by and conducted at Parentthrough Representatives of the Company, and Parent shall reasonably cooperate with its and the Company’s expense, at a Representatives and shall use commercially reasonable time, under efforts to minimize the supervision disruption of appropriate personnel the business and operations of the Acquired Corporations and Companies. Notwithstanding anything to the contrary in such a manner as this Agreement, the Company shall not be required to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require any of the Acquired Corporations to disclose any provide specific information to Parent if such disclosure would, in or any of its Representatives to the Company’s reasonable discretion extent that it requires any Acquired Company to (after consultation with its outside counselx) and after notice disclose information subject to Parent (i) jeopardize any attorney-client or other legal privilege or (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection y) disclose information in violation of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene in violation of any Contract confidentiality obligation to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as any of them are bound, provided, however, that the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their Company shall use its reasonable best efforts to negotiate in good faith agreements or arrangements that permit disclosure to the extent permitted by providing such Contract). Notwithstanding the foregoing, nothing in information or copies thereof or otherwise complying with this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to 5.1(a) in the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) circumstances where the Board of Directors or committee thereof discussed clause “(x) the Transactions, )” or any similar transaction involving an Acquired Corporation, “(y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to )” of this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)sentence applies.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Stock Purchase Agreement (RealPage, Inc.)
Access and Investigation. During Subject to the terms of the Confidentiality Agreement which the Parties agree will continue in full force following the date of this Agreement, during the period from commencing on the execution and delivery date of this Agreement until the earlier of and ending at the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 (the “Pre-Closing Period”), upon reasonable advance notice notice, the Company shall use commercially reasonable efforts to cause the Company, the Acquired Corporations shall, ’s applicable Representatives to: (a) provide Buyer and shall cause the respective Representatives of the Acquired Corporations to, provide Parent and ParentBuyer’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties personnel, assets, offices and assets other facilities of the Company and its Subsidiaries and to all existing books, records, Tax Returns, work papers and other documents and information relating to the Acquired CorporationsCompany and its Subsidiaries, provided, that such access will include reasonable direct access to the executive team and promptly other senior executives of the Company at the level of managing director (or equivalent) and higher; and (b) provide Parent Buyer and ParentBuyer’s Representatives with all reasonably requested information regarding the business such copies of the Acquired Corporations existing books, records, Tax Returns, work papers, product, technology and service data, and other documents and information relating to the Company and its Subsidiaries, their assets, Liabilities, Business, properties, offices and other facilities, and with such additional financial, operating and other data and information regarding the Acquired Corporations, Company and its Subsidiaries as Parent Buyer may reasonably request; provided, howeverthat such investigation shall only be upon reasonable notice and shall be at Buyer’s sole cost and expense; provided, further, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing nothing herein shall require the Company or any of the Acquired Corporations its Representatives to disclose any information to Parent Buyer or its Representatives if such disclosure would, in the Company’s reasonable discretion (after consultation with and good faith judgment of the Company or its outside counsel) and after notice to Parent Representatives, as applicable, (i) violate applicable Legal Requirements or the provisions of any Contract (including any confidentiality agreement or similar agreement or arrangement) to which the Company or any of its Subsidiaries or Representatives is a party, or fiduciary duty or (ii) jeopardize any attorney-client or other legal privilege privilege; provided, further, that, for the avoidance of doubt, nothing herein shall create (so long as or shall be construed to create) any obligation on any of the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or Company’s professional advisors to disclose any information, or otherwise take or refrain from taking any action, absent an express contractual requirement to do so under such professional advisors’ respective engagement agreements with the Company. If the Company does not provide or cause its applicable Representatives to provide such access or such information in reliance on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing previous sentences in this Section 4.1 5.1, then the Company shall require an Acquired Corporation promptly (and in any event within twenty four (24) hours after the Company determines that it will not provide or cause it Representatives to disclose any information provide such access or such information) provide a written notice to Parent Buyer stating that it is withholding such access or Parent’s Representatives if such information relates and stating the justification therefor, and shall use commercially reasonable efforts to provide the applicable portions of the minutes of the meetings of the Board of Directors information in a way that would not violate such Legal Requirement, Contract or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactionsconfidentiality agreement, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal jeopardize such privilege. No investigation or (z) a Company Adverse Recommendation Change. With respect to the information disclosed access permitted pursuant to this Section 4.1, Parent 5.1 shall comply with, and shall instruct Parent’s Representatives be deemed to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended modify any representation or warranty made by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)hereunder.
Appears in 1 contract
Samples: Investment Agreement (Sunlight Financial Holdings Inc.)
Access and Investigation. During From the period from the execution and delivery date of this Agreement until the earlier to occur of the Effective Time and the valid Closing Date or termination of this Agreement pursuant Agreement, Seller shall cause Longhorn to Section 7.1 (the “Pre-Closing Period”)allow Buyer and its Representatives reasonable access, at all reasonable times during normal business hours, upon reasonable advance notice notice, to the Companyofficers, employees and other personnel, attorneys, accountants, lenders and other representatives, records and files, correspondence, audits and properties, as well as to all information relating to commitments, contracts, titles and financial position and results of operations, or otherwise pertaining to the business, operations, and affairs of the Longhorn Entities, including inspection of such properties. Notwithstanding the foregoing, no Longhorn Entity shall be required to provide any information that (x) it reasonably believes it may not provide to Buyer by reason of Legal Requirements, (y) the disclosure of which would reasonably be expected to jeopardize applicable attorney/client privilege or work product protections; provided that Buyer and Seller shall consider in good faith on a case-by-case basis whether such privilege or protection may be preserved by entering into a common interest agreement, joint defense agreement or similar arrangement, or (z) it is required to keep confidential by reason of contract or agreement with third parties, provided that in lieu of providing any such contract or agreement Longhorn provides Buyer with a reasonably detailed summary of the material terms thereof. All requests for site visits and related discussions or questions regarding procedures shall be coordinated with the chief financial officer or chief legal officer of Seller, unless such individual directs otherwise, and in no event shall Buyer or anyone on Buyer’s behalf communicate with any past, present or prospective supplier, customer, consultant, creditor, bank or employee of Seller or any Longhorn Entity, or with any Governmental Entity, concerning or related to the Transactions contemplated by this Agreement, unless Seller consents in advance to such communication, which consent shall not be unreasonably withheld, conditioned or delayed. For the avoidance of doubt, the Acquired Corporations term “inspection” herein shall not encompass, and neither Buyer nor its Representatives shall be entitled to conduct (except as may be consented to in writing by Seller in its sole discretion), any Phase I review (whether conducted pursuant to applicable ASTM standards or otherwise) or any invasive, surface or subsurface testing or sampling, whether contemplated by any on-site investigation conducted in accordance with the current ASTM standards for the conduct of a Phase II on-site investigation or otherwise, including any soil borings, hand borings, geoprobes, test pits or monitoring xxxxx. IN CONNECTION WITH ANY ENVIRONMENTAL DUE DILIGENCE, SUBJECT TO SECTIONS 7.2(d) and 7.2(f)(vii), BUYER SHALL PROTECT, DEFEND, INDEMNIFY AND HOLD SELLER, THE LONGHORN ENTITIES AND EACH OF THE BUYER INDEMNIFIED PARTIES HARMLESS FROM AND AGAINST ANY AND ALL DAMAGES (AS DEFINED IN SECTION 10.2(a)(i) AND BELOW IN THIS SECTION 5.1) ARISING OUT OF OR RELATING TO THE DUE DILIGENCE CONDUCTED BY, BUT ONLY TO THE EXTENT CAUSED BY, BUYER, BUYER’S AFFILIATES OR ANY PERSON ACTING ON BUYER’S OR ITS AFFILIATES’ BEHALF, IN CONNECTION WITH ANY REAL PROPERTY SITE VISITS, REAL PROPERTY SITE INSPECTIONS AND ANY SAMPLING OF ANY ENVIRONMENTAL MEDIA FROM ANY REAL PROPERTY (IF AND TO THE EXTENT SELLER CONSENTS TO SUCH ACTIVITIES). Without limiting the foregoing, for purposes of this Section 5.1, “Damages” includes demands, claims, lawsuits, causes of action, losses, investigations and other proceedings, and other elements of “Damages” related thereto, brought by or asserted by the Longhorn Entities’ customers and the owners of any affected Leased Real Property. Buyer shall, and shall cause its Representatives to, in connection with the respective Representatives conduct of the Acquired Corporations due diligence investigations described in this Section 5.1, comply fully with all rules, regulations, policies and instructions reasonably issued by Seller or the Longhorn Entities and provided to Buyer regarding such Person’s actions while upon, entering or leaving any Real Property. Buyer shall not, and shall cause its Representatives not to, provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing books, records, documents and information relating to the Acquired Corporations, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations and such additional financial, operating and other data and information regarding the Acquired Corporations, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations and in such a manner as not to unreasonably interfere with the normal operation day-to-day operations of the business of the Acquired Corporations. Nothing herein shall require Business in conducting any of the Acquired Corporations to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent to permit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”)due diligence activities.
Appears in 1 contract
Access and Investigation. During Subject to the Confidentiality Agreement, during the period from commencing on the execution Agreement Date and delivery of this Agreement until ending on the earlier of (a) the Effective Time and (b) the valid termination of this Agreement pursuant to Section 7.1 8.1 (such period being referred to herein as the “Pre-Closing Interim Period”), the Company shall, and shall cause the Company Subsidiaries and its and their respective Representatives to, upon reasonable advance notice to the Company, the Acquired Corporations shall, and shall cause the respective Representatives of the Acquired Corporations to, Company from Parent: (i) provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties and assets and to all existing the Company Subsidiaries’ books, records, Tax Returns, material operating and financial reports, work papers, assets, officers, personnel, offices and other facilities, Contracts and other documents and information relating to the Acquired Corporations, Company and promptly the Company Subsidiaries and (ii) provide Parent and Parent’s Representatives with all reasonably requested information regarding the business such copies of the Acquired Corporations books, records, Tax Returns, work papers, Contracts and other documents and information relating to the Company and the Company Subsidiaries, and with such additional financial, operating and other data and information regarding the Acquired CorporationsCompany and the Company Subsidiaries, as Parent may reasonably request; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Company and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired Corporations. Nothing herein shall require Company or create material risk of damage or destruction to any material assets or property of the Acquired Corporations Company. Any such access shall be subject to disclose any information to Parent if such disclosure would, in the Company’s reasonable discretion security measures and insurance requirements and shall not include invasive testing. Information obtained by Merger Sub or Parent pursuant to this Section 6.1 will constitute “Evaluation Material” under the Confidentiality Agreement and will be subject to the provisions of the Confidentiality Agreement. Nothing in this Section 6.1 will require the Company to permit any inspection, or to disclose any information, that in the reasonable judgment of the Company would: (after consultation A) violate any of its or its Affiliates’ respective obligations with its outside counselrespect to confidentiality; (B) and after notice to Parent result in a violation of applicable Law; or (iC) jeopardize any result in the loss of a legal protection afforded by the attorney-client privilege or other legal privilege (the attorney work product doctrine or similar privilege, in each case, so long as the Acquired Corporations have Company has reasonably cooperated with Parent to either permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations have reasonably cooperated with Parent disclose such information subject to permit execution of a joint defense agreement in customary form, and/or limit disclosure to the extent not prohibited by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation is a party or by which an Acquired Corporation is bound as external counsel of the date of this Agreement (so long as the Acquired Corporations have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its obligations under the Confidential Disclosure Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1, 2023, by and between the Company and Parent (the “Confidentiality Agreement”).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Chembio Diagnostics, Inc.)
Access and Investigation. During the period from the execution and delivery date of this Agreement until the earlier of the Effective Time and the valid termination of this Agreement pursuant to Section 7.1 8 (the “Pre-Closing Period”), upon reasonable advance notice to the Company, the Acquired Corporations Companies shall, and shall cause the respective Representatives of the Acquired Corporations to, Companies to provide Parent and Parent’s Representatives with reasonable access during normal business hours of the Company to the Company’s designated Representatives, properties Representatives and assets and to all existing books, records, documents and information relating to the Acquired CorporationsCompanies, and promptly provide Parent and Parent’s Representatives with all reasonably requested information regarding the business of the Acquired Corporations Companies and such additional financial, operating and other data and information regarding the Acquired CorporationsCompanies, as Parent may reasonably request, in each case for any reasonable business purpose related to the consummation of the Transactions; provided, however, that any such access shall be conducted at Parent’s expense, at a reasonable time, under the supervision of appropriate personnel of the Acquired Corporations Companies and in such a manner as not to unreasonably interfere with the normal operation of the business of the Acquired CorporationsCompanies. Nothing herein shall require any of the Acquired Corporations Companies to disclose any information to Parent if such disclosure would, in the Company’s its reasonable discretion (after consultation with its outside counsel) and after notice to Parent (i) jeopardize any attorney-client or other legal privilege (so long as the Acquired Corporations Companies have reasonably cooperated with Parent to permit such inspection of or to disclose such information on a basis that does not waive such privilege with respect thereto), (ii) contravene any applicable Legal Requirement (so long as the Acquired Corporations Companies have reasonably cooperated with Parent and used reasonable best efforts to permit disclosure to the extent not prohibited permitted by Legal Requirements) or (iii) contravene any Contract to which an Acquired Corporation Company is a party or by which an Acquired Corporation is bound as of the date of this Agreement (so long as the Acquired Corporations Companies have reasonably cooperated with Parent and used their reasonable best efforts to permit disclosure to the extent permitted by such Contract). Notwithstanding the foregoing, nothing in this Section 4.1 shall require an Acquired Corporation to disclose any information to Parent or Parent’s Representatives if such information relates to the applicable portions of the minutes of the meetings of the Board of Directors or any committee thereof (including any presentations or other materials prepared by or for the Board of Directors or such committee thereof) where the Board of Directors or committee thereof discussed (x) the Transactions, or any similar transaction involving an Acquired Corporation, (y) any Acquisition Proposal or (z) a Company Adverse Recommendation Change. With respect to the information disclosed pursuant to this Section 4.15.1, Parent shall comply with, and shall instruct Parent’s Representatives to comply with, all of its the obligations under the Confidential Disclosure Confidentiality Agreement, dated October 19, 2020, as amended by that Amendment No. 1, effective as of July 30, 2021, Amendment No. 2, effective as of August 20, 2021, Amendment No. 3, effective as of October 18, 2022, and Amendment No. 4, dated as of August 30, 2023 and effective as of January 1June 12, 2023, by and between the Company and Parent Kontron AG (the “Confidentiality Agreement”).
Appears in 1 contract
