Access to Information. (a) Sellers agree that, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material. (b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 9 contracts
Sources: Master Sale and Purchase Agreement, Master Sale and Purchase Agreement, Master Sale and Purchase Agreement
Access to Information. (a) Sellers agree thatAfter Closing, until the earlier of the Executory Contract Designation Deadline Buyer will, and the termination of this Agreement, Purchaser shall be entitled, through will cause its Representatives to, at no cost to Buyer or otherwiseits Representatives, afford to have Seller, including its Representatives, on reasonable notice and at reasonable times, reasonable access to all books, records, files and documents related to the executive officers Business in order to permit Seller to prepare and Representatives of Sellers file its Tax Returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in any other investigation and defend any Proceedings relating to or involving Seller or the Business for which Seller may be responsible, to discharge its obligations under this Agreement and the properties other Related Documents to which it is a party and for other facilitiesreasonable purposes and will afford Seller reasonable assistance in connection therewith. Buyer will cause such records to be maintained for not less than seven (7) years from the Closing Date and will not dispose of such records without first offering in writing to deliver them to Seller; provided, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no in the event that Buyer transfers all or a portion of the Business to any third party during such investigation period, Buyer may transfer to such third party all or examination a portion of the books, records, files and documents related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.2(a). In addition, on and after the Closing Date, at Seller’s request, Buyer shall make available to Seller and its Affiliates and Representatives, on reasonable notice and at reasonable times, those employees of Buyer reasonably requested by Seller in connection with any Proceeding, including to provide testimony, to be permitted deposed, to act as witnesses and to assist counsel; provided, however, that (i) such access to such employees shall not unreasonably interfere with the extent that it wouldnormal conduct of the operations of Buyer and (ii) Seller shall reimburse Buyer for the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Seller. Without limiting the application of Section 6.1(d), in Sellers’ reasonable determination, require any Seller, any Subsidiary of any all documents or information furnished by Buyer or obtained by Seller or any of their respective its Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 hereunder shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a6.1(d), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 4 contracts
Sources: Purchase and Sale Agreement, Purchase and Sale Agreement (Southern Union Co), Purchase and Sale Agreement (Laclede Group Inc)
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledSeller will, through at reasonable times and upon reasonable notice, provide Buyer and its Representatives or otherwise, to have Representatives:
(i) reasonable access to the executive officers and Representatives of Sellers and the properties their respective managerial personnel, to all books, records, plans, equipment, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting part of the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.Assets;
(bii) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional historical financial and operating data and other information with respect to the Assets as Purchaser Buyer may from time to time reasonably request, subjectto the extent reasonably available;
(iii) upon request, in a copy of each casematerial report, schedule or other document, if any, filed by Seller with respect to the Assets with the SEC, FERC, ACC, ADEQ or any other Governmental Authority;
(iv) access to all Assets for Inspection by Buyer and its Representatives at reasonable times during regular business hours scheduled for such Inspections, and shall provide qualified management, engineering, operations and maintenance and other personnel to make presentations as required, to escort such Persons and to assist in all aspects of conducting the confidentiality restrictions outlined Inspections, provided that each of Buyer and Seller shall bear their own costs of participating in the Inspections; and
(v) access to all such other information in the possession or control of Seller as shall be reasonably necessary to enable Buyer or its Representatives to verify the accuracy of the representations and warranties of Seller contained in this Agreement; provided, however, that any such Inspections shall be conducted in such a manner as not to interfere unreasonably with the operation of the Assets. In the event that Seller's provision of information under this Section 6.2 would (A) constitute a waiver of any legal privilege, including the attorney-client privilege or work product privilege, or (B) violate any legal or contractual obligation of Seller to a third party, then Seller shall first notify Buyer with respect to the existence and general nature of the restricted information. If the restricted information relates to the Assets, the Parties shall thereupon mutually agree upon a reasonable procedure in order to provide Buyer with access to the information while protecting the legitimate interests of Seller thereto. The mutually agreed procedure may include, without limitation, a limited waiver by Seller of the relevant privilege, Buyer's agreement to maintain the information in strict confidence, limited review or inspection of the information by specified individuals, or any combination of the foregoing. Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein 6.2(a) to the contrary, Purchaser with respect to employee records Seller will only furnish or provide such access to Transferred Employee Records and will not furnish or provide access to other employee personnel records or medical information unless required by law or specifically authorized by the affected employee.
(b) The Parties shall consult cooperate to schedule Buyer's Inspections of the Assets so that, to the extent reasonably feasible, any interference with Sellers the operation of the Business is minimized, and Buyer may complete its Inspections of the Assets within ninety (90) working days of commencement of Inspections and within six (6) months after the execution of this Agreement.
(c) Until the conclusion of Buyer's next rate case for the Business (or such longer period as may be required by applicable law), each Party and its Representatives shall have reasonable access to all of the books and records relating to the Assets and the Business (for the Seller, only to the extent relating to periods prior to conducting any environmental investigations the Closing Date), including all Transferred Employee Records in the possession of Buyer or examinations Seller to the extent that such access may reasonably be required in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Assets. Such access shall be afforded by the Party in possession of any nature, including Phase I such books and Phase II site assessments records upon receipt of reasonable advance notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any environmental sampling in respect costs or expenses incurred by it or the holder of the Transferred Real Propertyinformation with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such above-stated period (or any such longer period), such Party shall, prior to such disposition, give the other Party a reasonable opportunity, at the latter's expense, to segregate and remove such books and records as it may select.
(d) Buyer agrees that, prior to the Closing Date, neither it nor its Representatives will contact any vendors, suppliers, employees, or other contracting parties of Seller or its Affiliates with respect to any aspect of the Assets or the transactions contemplated hereby, without the prior written consent of Seller, which consent shall not be unreasonably withheld.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Citizens Communications Co), Asset Purchase Agreement (Citizens Communications Co), Asset Purchase Agreement (Unisource Energy Corp)
Access to Information. Other than in circumstances in which indemnification is sought pursuant to Article V (in which event the provisions of such Article V shall govern) or for matters related to provision of Tax records (in which event the provisions of the Tax Matters Agreement and Employee Matters Agreement shall govern) and subject to appropriate restrictions for Privileged Information or Confidential Information:
(a) Sellers agree thatAfter the Distribution Time, until and subject to compliance with the earlier terms of the Executory Contract Designation Deadline Ancillary Agreements, upon the prior written reasonable request by, and at the termination of this Agreementexpense of, Purchaser shall be entitledOmniAb for specific and identified Information:
(i) that (x) relates to OmniAb or the OmniAb Business, through its Representatives or otherwiseas the case may be, to have reasonable access prior to the executive officers and Representatives Distribution Time or (y) is necessary for OmniAb to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Ligand and/or OmniAb are parties, Ligand shall provide, as soon as reasonably practicable following the receipt of Sellers and such request, appropriate copies of such Information (or the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including originals thereof if OmniAb has a reasonable need for such originals) in the Purchased Assets and Assumed Liabilities) possession or control of Sellers and their Ligand or any of its Affiliates or Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted but only to the extent that it would, such items so relate and are not already in Sellers’ reasonable determination, require any Seller, any Subsidiary the possession or control of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which caseOmniAb; provided that, to the extent any originals are delivered to OmniAb pursuant to this Agreement or the Ancillary Agreements, OmniAb shall, at its own expense, return them to Ligand within a reasonable time after the need to retain such originals has ceased; provided further that, such obligation to provide any requested Information shall terminate and be of no further force and effect on the date that is the first anniversary of the date of this Agreement; provided further that, in the event that Ligand, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 6.3) would violate any Law or Contract with a third party or could reasonably result in the waiver of any Privilege, Ligand shall not be obligated to provide such Information requested by PurchaserOmniAb;
(ii) that (x) is required by OmniAb with regard to reasonable compliance with reporting, Sellers will use reasonable best efforts to seek an amendment disclosure, filing or appropriate waiverother requirements imposed on OmniAb (including under applicable securities laws) by a Governmental Entity having jurisdiction over OmniAb, or necessary consents(y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Action or other similar requirements, as may be required applicable, Ligand shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if OmniAb has a reasonable need for such originals) in the possession or control of Ligand or any of its Affiliates or Subsidiaries, but only to avoid the extent such conflict, items so relate and are not already in the possession or restructure the form control of access, so as to permit the access requested)OmniAb; provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closingthat, to the Chief Financial Officer of Parent or his designee, and following the Closing, extent any originals are delivered to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld OmniAb pursuant to this Agreement or the Ancillary Agreements, OmniAb shall, at its own expense, return them to Ligand within a reasonable time after the need to retain such originals has ceased; provided further that, in the event that Ligand, in its sole discretion, determines that any such access or the provision of any such Information (including information requested under Section 6.1(a)6.3) would violate any Law or Contract with a third party or waive any Privilege, Seller Ligand shall inform Purchaser in writing as not be obligated to the general nature of what is being withheld and the reason for withholding provide such material.Information requested by OmniAb; or
(b) Any investigation After the Distribution Time, and examination contemplated by this Section 6.1 shall be subject to restrictions set forth compliance with the terms of the Ancillary Agreements, upon the prior written reasonable request by, and at the expense of, Ligand for specific and identified Information:
(i) that (x) relates to matters prior to the Distribution Time or (y) is necessary for Ligand to comply with the terms of, or otherwise perform under, any Ancillary Agreement to which Ligand and/or OmniAb are parties, OmniAb shall provide, as soon as reasonably practicable following the receipt of such request, appropriate copies of such Information (or the originals thereof if Ligand has a reasonable need for such originals) in the possession or control of OmniAb or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in the possession or control of Ligand; provided that, to the extent any originals are delivered to Ligand pursuant to this Agreement or the Ancillary Agreements, Ligand shall, at its own expense, return them to OmniAb within a reasonable time after the need to retain such originals has ceased; provided further that, in the event any such access or the provision of any such Information (including information requested under Section 6.24 and 6.3) would violate any Law or Contract with a third party or waive any Privilege, OmniAb shall not be obligated to provide such Information requested by Ligand.
(ii) that (x) is required by Ligand with regard to reasonable compliance with reporting, disclosure, filing or other requirements imposed on Ligand (including under applicable Law. Sellers shall cooperatesecurities laws) by a Governmental Entity having jurisdiction over Ligand, and shall cause their Subsidiaries and each of their respective Representatives or (y) is for use in any other judicial, regulatory, administrative or other proceeding or in order to cooperatesatisfy audit, with Purchaser and its Representatives in connection with such investigation and examinationaccounting, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingclaims, subject to Section 6.1(a)regulatory, such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers)litigation, offices, properties and Action or other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiariessimilar requirements, as applicable, OmniAb shall have provide, as soon as reasonably practicable following the right to be present at any meeting between any receipt of such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subjectappropriate copies of such Information (or the originals thereof if Ligand has a reasonable need for such originals) in the possession or control of OmniAb or any of its Affiliates or Subsidiaries, but only to the extent such items so relate and are not already in each casethe possession or control of Ligand; provided that, to the confidentiality restrictions outlined in extent any originals are delivered to Ligand pursuant to this Section 6.1. Notwithstanding anything contained herein Agreement or the Ancillary Agreements, Ligand shall, at its own expense, return them to OmniAb within a reasonable time after the need to retain such originals has ceased.
(c) Each of Ligand and OmniAb shall inform their respective officers, employees, agents, consultants, advisors, authorized accountants, counsel and other designated representatives who have or have access to the contrary, Purchaser shall consult other Party’s Confidential Information or other information provided pursuant to this Article VI of their obligation to hold such information confidential in accordance with Sellers prior to conducting any environmental investigations or examinations the provisions of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertythis Agreement.
Appears in 4 contracts
Sources: Separation and Distribution Agreement (Ligand Pharmaceuticals Inc), Separation and Distribution Agreement (Avista Public Acquisition Corp. II), Merger Agreement (Avista Public Acquisition Corp. II)
Access to Information. (a) Sellers agree thatGST and Seller shall cause the Company to afford to Buyer and, until on a need to know basis, its accountants, counsel, financial advisors and other representatives (the earlier of "Buyer Representatives") full access during normal business hours throughout the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access period prior to the executive officers and Representatives Closing Date to all of Sellers and the properties and other facilities, businessesits properties, books, Contractscontracts, personnelcommitments and records (including, records but not limited to, tax returns) and, during such period, shall furnish promptly to the Buyer or Buyer Representatives (i) a copy of each report, schedule and operations other document filed by it with the SEC in connection with the transactions contemplated by this Agreement or that may have a material effect on its businesses, and (including ii) such other information concerning the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administrationCompany's business as Buyer shall reasonably request; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller 4.1 shall inform Purchaser in writing as amend or modify any representations or warranties made herein or the conditions to the general nature obligations of what is being withheld the respective parties to consummate the transactions contemplated hereby. Buyer shall treat, and shall cause the reason for withholding Buyer Representatives to treat, all such materialmaterials and information in accordance with the terms and conditions of that certain Mutual Non-Disclosure Agreement dated December , 1997 between Buyer and GST (the "Non-Disclosure Agreement").
(b) Any investigation Buyer shall afford GST and examination Seller and, on a need to know basis, their respective accountants, counsel, financial advisors and other representatives (the "Seller Representatives") full access during normal business hours throughout the period prior to the Closing Date to all of the respective properties, books, contracts, commitments and records (including, but not limited to, tax returns) of Buyer and its subsidiaries and, during such period, shall furnish promptly to GST and Seller or the Seller Representatives (i) a copy of each report, schedule and other document filed by any of them with the SEC in connection with the transactions contemplated by this Agreement or that may have a material effect on their respective businesses, and (ii) such other information concerning Buyer's business as GST and Seller shall reasonably request; provided that no investigation pursuant to this Section 6.1 4.1 shall be subject amend or modify any representations or warranties made herein or the conditions to restrictions set forth in Section 6.24 the obligations of the respective parties to consummate the transactions contemplated hereby. Seller and under applicable Law. Sellers GST shall cooperatetreat, and shall cause their Subsidiaries the Seller Representative to treat, all such materials and each of their respective Representatives to cooperate, with Purchaser and its Representatives information in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere accordance with the business of Sellers terms and their Subsidiaries. Without limiting the generality conditions of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyNon-Disclosure Agreement.
Appears in 4 contracts
Sources: Stock Purchase Agreement (World Access Inc), Stock Purchase Agreement (GST Telecommunications Inc), Stock Purchase Agreement (World Access Inc)
Access to Information. (a) Sellers agree Seller agrees that, until prior to the earlier of the Executory Contract Designation Deadline and the termination of this AgreementClosing Date, Purchaser shall be entitled, through its Representatives or otherwiseofficers, employees and representatives (including, without limitation, its legal advisors and accountants), to have reasonable access to make such investigation of the executive officers and Representatives of Sellers and the properties and other facilitiesproperties, businesses, books, Contracts, personnel, records businesses and operations (including of the Business and such examination of the books and records of the Business, the Purchased Assets and the Assumed Liabilities) Liabilities as it reasonably requests and to make extracts and copies of Sellers such books and records. Any such investigation and examination shall be conducted during regular business hours upon reasonable advance notice and under reasonable circumstances and shall be subject to restrictions under applicable Law. Seller shall cause the officers, employees, consultants, agents, accountants, attorneys and other representatives of Seller and its applicable Affiliates to cooperate with Purchaser and Purchaser’s representatives in connection with such investigation and examination, and Purchaser and its representatives shall cooperate with Seller and its representatives and shall use their Subsidiariesreasonable efforts to minimize any disruption to the Business. Prior to performing any inspection or test, including access Purchaser must deliver a certificate of insurance to systemsSeller evidencing that Purchaser and its contractors, dataagents and representatives have in place and will maintain during the term of this Agreement commercial general liability insurance acceptable to Seller covering any accident arising in connection with the presence of Purchaser, databases for benefit plan administration; provided howeverits contractors, that agents and representatives on Seller Properties, which insurance shall name as additional insured thereunder Seller and such other parties holding insurable interests as Seller may designate. Notwithstanding anything herein to the contrary, no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, would require any Seller, any Subsidiary of any Seller or any of their respective Representatives its applicable Affiliates to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement obligations to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, its applicable Affiliates is bound. Notwithstanding anything to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directedcontrary contained herein, prior to the Closing, without the prior written consent of Seller, which may be withheld for any reason, Purchaser shall not contact any suppliers to, or customers of, Seller. Purchaser must obtain Seller’s prior written consent (which consent will not be unreasonably withheld or delayed) prior to performing any invasive or intrusive testing of the Chief Financial Officer Owned Properties (including, without limitation, collection of Parent air, soil, groundwater, or his designeebuilding material samples or soil cores or any test designed to identify the presence of Hazardous Material), and following any such invasive testing, Purchaser shall restore the Closing, Owned Properties as nearly as reasonably practicable to the Chief Restructuring Officer of Parent or his or her designeecondition that existed prior to such testing. If any material is withheld pursuant Purchaser hereby agrees to this Section 6.1(a)indemnify, Seller shall inform Purchaser in writing as to the general nature of what is being withheld defend and the reason for withholding such material.
(b) Any investigation hold Seller, its partners, shareholders, members, managers, owners and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers affiliates and their respective Subsidiaries identified by such executive officers), officesmanagers, properties directors, employees, agents and other facilitiesrepresentatives harmless from and against any and all liens, claims, causes of action, damages, liabilities and books, Contracts and records expenses (including any document retention policies of Sellersreasonable attorneys’ fees) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative arising out of Purchaser, whether such meeting is in person, telephonic ’s inspections or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in tests permitted under this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyAgreement.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Attis Industries Inc.), Asset Purchase Agreement, Asset Purchase Agreement (Attis Industries Inc.)
Access to Information. (a) Sellers agree that, until Prior to the earlier of the Executory Contract Designation Deadline and the termination of this AgreementClosing Date, Purchaser shall will be entitled, through its Representatives or otherwiseofficers, employees, consultants and representatives (including, without limitation, its legal advisors and accountants), to have reasonable access to make such investigation of the executive officers and Representatives of Sellers and the properties and other facilitiesproperties, businesses, books, Contracts, personnel, records businesses and operations (including of the Business and such examination of the books and records of the Business, the Purchased Assets and the Assumed Liabilities) Liabilities as it reasonably requests and to make extracts and copies of Sellers such books and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no records. Any such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall will be conducted upon reasonable advance notice and under reasonable circumstances and will be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, will direct and shall use their best efforts to cause their Subsidiaries respective officers, employees, consultants, agents, accountants, attorneys and each of their respective Representatives other representatives to cooperate, cooperate with Purchaser and its Representatives Purchaser’s representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere representatives will cooperate with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1representatives. Notwithstanding anything contained herein to the contrary, no such investigation or examination will be permitted to the extent that it would require Sellers to disclose information that is competitively sensitive or subject to attorney-client privilege. No investigation by Purchaser shall consult with Sellers prior to conducting or after the date of this Agreement will affect or be deemed to modify any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyrepresentations, warranties, covenants or agreements of Sellers contained in this Agreement. Sellers will promptly deliver to Purchaser all pleadings, motions, notices, statements, schedules, applications, reports and other papers filed in any other judicial or administrative proceeding related to the Business, the Purchased Assets and the transactions contemplated by this Agreement as Purchaser may reasonably request.
Appears in 3 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Flowers Foods Inc), Intellectual Property Purchase Agreement (Flowers Foods Inc)
Access to Information. (a) Sellers agree thatSeller shall afford Purchaser and its accountants, until the earlier of the Executory Contract Designation Deadline counsel and the termination of this Agreementother representatives (including potential financing sources), Purchaser shall be entitledreasonable access, through its Representatives or otherwiseduring normal business hours, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businessesproperties, books, Contracts, personnel, records and operations (including the Purchased Assets personnel of Seller and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require its Subsidiaries at any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, time prior to the ClosingClosing in order to enable Purchaser obtain all information concerning the business, to assets and properties, results of operations and personnel of Seller and its Subsidiaries as Purchaser may reasonably request. No information or knowledge obtained in the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld foregoing investigation by Purchaser pursuant to this Section 6.1(a), Seller 6.3 shall inform Purchaser in writing as affect or be deemed to modify any representation or warranty contained herein or the conditions to the general nature obligations of what is being withheld Seller and Purchaser to consummate the reason for withholding such materialtransactions contemplated hereby.
(b) Any investigation and examination contemplated by this Section 6.1 Seller shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateprovide, and shall cause their its Subsidiaries and each of its and their respective Representatives officers and employees to cooperateprovide, with Purchaser and its Representatives all necessary cooperation in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality arrangement of the foregoingFinancing and related matters, subject including, without limitation, the execution and delivery of any commitment letters, underwriting or placement agreements, pledge and security documents, other definitive financing documents, or other requested certificates or documents, including a certificate of the chief financial officer of Seller with respect to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiariessolvency matters, as applicablemay be requested by Purchaser, provided, however, that such letters, agreements or documents expressly provide that, from and after consummation of the transactions contemplated by this Agreement, Seller shall have no Liability thereunder and the right other parties thereto shall look solely to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyany obligations of Seller thereunder.
Appears in 3 contracts
Sources: Stock Purchase Agreement (Veritas Software Corp /De/), Stock Purchase Agreement (Seagate Technology Holdings), Stock Purchase Agreement (Seagate Technology Malaysia Holding Co Cayman Islands)
Access to Information. Except as may be deemed appropriate to ensure compliance with any Applicable Laws (including, without limitation, any requirements with respect to security clearances) and subject to any applicable privileges (including, without limitation, the attorney-client privilege), from the date of this Agreement until the Closing Date, LM will, and will cause each Subsidiary of LM to:
(a) Sellers agree that, until the earlier of the Executory Contract Designation Deadline give GE and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers offices, properties, books and Representatives records of Sellers LM and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted Subsidiary relating to the extent that it wouldCompany, in Sellers’ the Businesses, the Transferred Assets or the Assumed Liabilities during normal business hours and upon reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.notice;
(b) Any furnish to GE and its Representatives such financial and operating data and other information relating to the Company and the Businesses, as GE may reasonably request;
(c) instruct its employees and Representatives to cooperate with GE in its investigation of the Company, the Businesses, the Transferred Assets and examination contemplated by this Section 6.1 shall be subject the Assumed Liabilities (including, in each case, any investigation of the accuracy and completeness of the representations made in the Officers' Certificates referred to restrictions set forth in Section 6.24 8.02(d)(i) and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives other matters reasonably related to cooperate, with Purchaser the Tax consequences of the Contemplated Transactions); and
(d) assist GE and its Representatives in connection with such conducting an investigation of the materials and examinationdesigns utilized for or the workmanship related to any product or spare part (other than a CF6 Product or a Nacelle Major Component) manufactured, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with assembled, sold, distributed, overhauled, repaired or retrofitted by the business of Sellers and their SubsidiariesThrust Reverser Business. Without limiting the generality of the foregoing, subject to the limitations set forth in the first sentence of this Section 6.1(a)5.02, (i) LM shall use its best efforts (which best efforts undertaking, if requested by the Company, shall continue after the Closing Date) to enable GE and its Representatives to conduct at GE's own expense business and financial reviews, investigations, and studies as to the integration of the Business and the GE businesses, including any Tax, operating or other efficiencies which may be achieved through the segregation or consolidation of various components of such investigation businesses and examination (ii) subject to the limitations set forth in the first sentence of this Section 5.02, from the date of this Agreement to the Closing Date, LM shall include reasonable give GE and its Representatives access to Sellers’ executive officers (and employees information relating to the Businesses of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilitiesthe type, and bookswith the same level of detail, Contracts and records (including any document retention policies as in the ordinary course of Sellers) and business is made available to the general managers of the Businesses. Notwithstanding the foregoing, GE will not have access to accountants personnel records of Sellers and each LM or any Subsidiary of their respective Subsidiaries (provided that Sellers and each of their respective SubsidiariesLM relating to individual performance or evaluation records, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser medical histories or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, which in each case, to LM's good faith opinion is sensitive or the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting disclosure of which could subject LM or any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyTransferor Subsidiaries to risk of liability.
Appears in 3 contracts
Sources: Exchange Agreement (General Electric Co), Exchange Agreement (Lockheed Martin Corp), Exchange Agreement (General Electric Co)
Access to Information. Between the date of this Agreement and the Closing Date, the Sellers shall, and shall cause their Affiliates (ato the extent reasonably required) to, upon reasonable request by the Buyer, provide the Buyer, the Buyer’s lenders and their respective employees, counsel, accountants and other representatives and advisors (collectively, the “Representatives”) full access, during normal business hours on reasonable notice (and at such other times as Buyer reasonably requests) and under reasonable circumstances, to any and all premises, properties, Contracts, commitments, books and records and other information exclusively of or relating exclusively to the Stock or the Companies (the “Company Subject Matter”); provided, however, that the Sellers agree thatshall use their respective commercially reasonable efforts to provide to the Buyer and its lenders any such information that does not relate exclusively to the Company Subject Matter to the extent such information can be segregated without undue effort from information relating to the Sellers or their Affiliates and that is not otherwise confidential or of a competitive nature; provided, until further, that such access may be limited to the earlier location at which the relevant information is normally maintained, shall not unreasonably interfere with the operations of the Executory Contract Designation Deadline Companies or their Affiliates, and shall be limited to the termination extent reasonably determined to be required by the applicable law. In furtherance of the foregoing but subject to the limitations of this AgreementSection 9.3, Purchaser the Sellers shall, and shall be entitledcause each Company’s Subsidiaries to, through its permit the Buyer, the Buyer’s lenders and their respective Representatives or otherwise, to have reasonable access to the executive officers and Representatives Real Property to perform, at the Buyer’s expense, any environmental testing that the Buyer reasonably deems appropriate, including, without limitation, a Phase I environmental site assessment of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access any such property pursuant to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted ASTM Standard E 1527-05. Prior to the extent that it wouldClosing Date, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or neither the Buyer nor any of their respective its Representatives shall contact or make inquiries to disclose information subject to attorney-client privilege or any governmental agencies (other than as contemplated by Articles VII and VIII hereof) in conflict connection with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination transactions contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each Agreement without the prior written consent of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertySeller.
Appears in 3 contracts
Sources: Purchase Agreement (Peak Resorts Inc), Purchase Agreement (Peak Resorts Inc), Purchase Agreement (American Skiing Co /Me)
Access to Information. From the date hereof until the earlier to occur of the Closing and termination of this Agreement pursuant to Article IX, Seller shall (a) Sellers agree thatafford Buyer and its Representatives reasonable access during normal business hours, until upon reasonable advance notice, to and the earlier right to inspect all of the Executory Contract Designation Deadline and the termination of this Agreementproperties, Purchaser shall be entitledassets, through its Representatives or otherwisepremises, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted in each case to the extent that it wouldthey relate to the Purchased Assets, in Sellers’ reasonable determinationbooks and records, require any SellerAssumed Contracts and other documents and data Related to the Business; (b) promptly furnish Buyer and its Representatives with such financial, any Subsidiary of any Seller operating and other data and information Related to the Business as Buyer or any of their respective its Representatives may reasonably request; and (c) instruct the Representatives of Seller to disclose information subject to attorney-client privilege or cooperate with Buyer in conflict with any confidentiality agreement to which any Sellerits investigation of the Purchased Assets, any Subsidiary including Buyer conducting a physical inventory of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, Inventory prior to the Closing; provided, however, that Seller may restrict or otherwise prohibit access to any documents or information to the Chief Financial Officer extent (i) required by any Governmental Order or Law to which Seller is subject, (ii) it would be reasonably likely to result in Seller waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information, or (iii) access to an Assumed Contract in effect as of Parent the date of this Agreement to which Seller is a party or his designeeotherwise bound would violate or cause a default pursuant to, and following or give a Third Party the Closingright to terminate or accelerate the rights pursuant to, such Contract (it being understood that Seller shall use commercially reasonable efforts to the Chief Restructuring Officer of Parent or his or her designeeeither eliminate any such impediments to providing such information and/or to provide reasonable alternatives to such restricted information). If ▇▇▇▇▇ agrees that any material is withheld such access pursuant to this Section 6.1(a), Seller 6.03 shall inform Purchaser be conducted in writing such a manner as not to interfere unreasonably with the normal operations of the Business. Any access to the general nature properties (including systems) of what is being withheld Seller will be subject to Seller’s reasonable security measures and insurance requirements and will not include the reason for withholding such material.
(b) Any right to perform invasive testing. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Buyer, its Affiliates or any of its or their Representatives in connection with any investigation and examination conducted pursuant to the access contemplated by this Section 6.1 shall 6.03. All requests for access pursuant to this Section 6.03 must be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, directed to the confidentiality restrictions outlined Seller’s Chief Executive Officer, or another person designated in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertywriting by Seller.
Appears in 3 contracts
Sources: Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.), Asset Purchase Agreement (NovaBay Pharmaceuticals, Inc.)
Access to Information. Upon reasonable notice, the Company will (aand will cause its Subsidiaries to) Sellers agree thatafford to the officers, until employees, accountants, counsel and other representatives of Parent and Purchaser, access, at all reasonable times during the earlier of period prior to the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwiseEffective Time, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other all its properties, facilities, businesses, books, Contracts, personnel, commitments and records and operations (including the Purchased Assets Tax Returns) and Assumed Liabilities) of Sellers and their Subsidiariesother information requested by such party, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted purposes of post-acquisition planning and integration planning to the extent requested by Parent, and, during such period, the Company will (and will cause each of its Subsidiaries to) furnish promptly to Parent and Purchaser all information concerning its business, properties and personnel as Parent or Purchaser may request; provided, that it would(i) no investigation or request pursuant to this Section 6.3 or otherwise as undertaken in connection with the transactions contemplated hereunder, shall affect or be deemed to modify any representation or warranty made by the Company; (ii) the Company in Sellers’ reasonable determinationresponding to requests from Parent or any Parent representative for access to records or other information of a confidential and competitively sensitive nature may, require any Sellerprior to expiration or termination of the waiting period under the HSR Act, limit such access to Parent's outside accountants, counsel, financial advisors and other outside representatives; and (iii) in no event shall this Section 6.3 be deemed to permit Parent, Purchaser, any Subsidiary of any Seller this respective affiliates or any of their respective Representatives directors, officers, employees, agents or representatives to disclose conduct any invasive sampling or testing. Any information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld obtained pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature 6.3 or any other provision of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 Agreement shall be subject to restrictions set forth in Section 6.24 the terms of the Confidentiality Agreement dated December 16, 2002, by and under applicable Law. Sellers shall cooperate, between Reuters America Inc. and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examinationthe Company (the "Confidentiality Agreement"), and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere party hereto will comply with the business of Sellers and their Subsidiaries. Without limiting the generality terms of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of PurchaserConfidentiality Agreement, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertynot a party thereto.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Reuters Group PLC /Adr/), Agreement and Plan of Merger (Multex Com Inc)
Access to Information. (a) Sellers agree that, From the date hereof until the earlier of (x) the Executory Contract Designation Deadline Closing and the (y) any termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld Agreement pursuant to this Section 6.1(a)7.1, upon reasonable notice, Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries and each of their respective Representatives its officers, directors, employees, auditors and agents to cooperate(i) afford the officers, with Purchaser employees and its Representatives in connection with such investigation and examination, and each representatives of Purchaser reasonable access, during normal business hours, to the offices, plants, warehouses, properties, Contracts, Tax Returns, books and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (records and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilitiesSeller, and books, Contracts and records (including any document retention policies of Sellersii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives the officers, employees and representatives of Purchaser such additional financial and operating data and other information regarding the operations of Seller as are then in existence and as Purchaser may from time to time reasonably request; provided, subjecthowever, that such investigations shall not (i) unreasonably interfere with the operations of Seller or any of their Affiliates or (ii) include any rights to perform or conduct any Phase II environmental or other physically destructive testing or investigations without the prior written consent of Seller (which consent Seller shall have the right to withhold or condition in each caseits sole and absolute discretion). All information provided pursuant to this Section 4.3 shall be governed by the terms of the confidentiality agreement in place between Seller and Purchaser and all discussions by Purchaser or its representatives with any employees of Seller shall be coordinated only through Seller’s senior management and such senior management having the right but not the obligation to participate in or monitor such discussions; provided, however, Purchaser and its representatives shall have the right to meet privately with any employees and other independent contractors of Seller without Seller’s senior management or other representatives participating in such meetings to the confidentiality restrictions outlined extent the substance of such meetings do not involve and will be limited to discussions of and negotiations about such individual’s future employment, professional goals, role in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect future of the Transferred Real PropertyBusiness and future developments of the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Response Genetics Inc), Asset Purchase Agreement (Cancer Genetics, Inc)
Access to Information. (a) Sellers agree thatDuring the Pre-Closing Period, until Seller shall, and shall cause the earlier Acquired Companies to (and, to the extent within the control of Seller or its Subsidiaries shall cause each other Seller Business Group Member to), provide Buyer and its Representatives with reasonable access to (i) all of the Executory Contract Designation Deadline Seller Business Group’s (to the extent related to the Business) and the termination Business’ properties, Contracts, books and records and other documents, data and information; (ii) all of their respective officers, employees and other personnel involved in the Seller Business Group (to the extent related to the Business) or the Business; and (iii) any other information of the Seller Business Group (to the extent related to the Business and, with respect to JV Entities, to the extent Seller or its Subsidiaries has, or has the right to, access to such information) or the Business as Buyer or any of its Representatives may reasonably request. All access and investigation pursuant to this Agreement, Purchaser Section 5.2(a) shall be entitled(A) conducted during normal business hours upon reasonable advance notice to Seller, (B) conducted in such a manner as not to unreasonably interfere with the normal operations of the Seller Business Group or the Business, (C) coordinated through the managing director of international wholesale or general counsel (or equivalent) of the Business or designee thereof and (D) conducted at Buyer’s sole cost and expense; provided that Seller shall have the right, at its Representatives or otherwisecost and expense, to have reasonable access one or more of its Representatives present at all times during any visits, examinations, discussions or contacts contemplated by this Section 5.2(a). Notwithstanding anything to the executive officers and Representatives of Sellers and contrary contained herein, during the properties and other facilitiesPre-Closing Period, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination Seller Business Group Member shall be permitted required to provide access or disclose information to the extent that it such access or disclosure would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to (w) jeopardize the attorney-client privilege or in conflict with other immunity or protection from disclosure of a Seller Business Group Member or the Business, (x) violate any confidentiality agreement (i) Law or Order applicable to which any SellerSeller Business Group Member or the Business, including any Subsidiary Data Protection Law, or (ii) any COVID-19 Measure applicable to any Seller Business Group Member or the Business, or (y) require the disclosure of any Seller or any of their respective Representatives are bound (in which case, information with respect to the extent requested by PurchaserRetained Business; provided, Sellers will use reasonable best efforts to seek an amendment however, that, in the case of clauses (w), (x) or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a(y), Seller shall inform Purchaser Buyer of the nature of the information being withheld and, upon Buyer’s request, cooperate with Buyer to provide such information, in writing as whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (w), (x) or (y). Notwithstanding anything to the general nature contrary contained herein, during the Pre-Closing Period, (1) without the prior written consent of what Seller (such consent not to be unreasonably withheld, conditioned or delayed), Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any Person known by Buyer to be a vendor, supplier, customer or employee that is not a member of senior management of the Business regarding the Business, the Acquired Companies (or otherwise regarding Seller or any of its Affiliates), the subject matter of this Agreement, the Ancillary Agreements or the transactions contemplated hereby or thereby (it being withheld understood that Buyer, its Affiliates and Representatives may contact any such Person in the reason for withholding such materialordinary course of their respective businesses and consistent with past practice), and (2) without the prior written consent of Seller, Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Seller Business Group Member or the Business.
(b) Any Buyer will hold any information obtained pursuant to Section 5.2(a) in confidence in accordance with the Confidentiality Agreement.
(c) No information or knowledge obtained in any investigation by Buyer or other information received by Buyer pursuant to Section 5.2(a) shall operate as a waiver or be deemed to modify or otherwise affect any representation, warranty or agreement contained herein or in any certificate, document or other instrument delivered in connection herewith, the conditions to the obligations of the Parties to consummate the Closing in Article 7 or otherwise prejudice in any way the rights and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 remedies of Buyer hereunder.
(d) From and under applicable Law. Sellers shall cooperateafter the Closing, for a period of five (5) years, Seller shall, and shall cause their Subsidiaries and each of its Affiliates and its and their respective Representatives to, maintain in confidence, not disclose to any Person, any non-public, confidential or proprietary information in its possession, under its control or to which it has access to the extent relating to the Business. It is understood that Seller shall not have any liability under this Section 5.2(d) with respect to the disclosure of information that (A) is in or comes into the public domain, through no breach of this Section 5.2(d) by Seller, its Affiliates or any of its or their Representatives, (B) is accessible to Seller, its Affiliates or any of its or their Representatives from a third party that is not known by Seller, its Affiliates or any of their Representatives to cooperatebe bound by a duty or obligation of confidentiality to the Buyer or any of its Affiliates (including the Acquired Companies or the JV Entities) with respect to such information, (C) it is required by Law or Order or stock exchange regulation to disclose, (D) is disclosed by Seller or its Affiliates or its or their Representatives in accordance with Purchaser and its Representatives Section 5.11 or (E) in connection with such investigation and examinationenforcing its rights under this Agreement or any Ancillary Agreement; provided, and each that in the case of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(aclause (C), such investigation and examination Seller shall include reasonable access notify Buyer as early as practicable prior to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access disclosure to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right allow Buyer to be present take appropriate measures at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish Buyer’s expense to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to preserve the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertysuch information.
Appears in 2 contracts
Sources: Share Purchase Agreement (Amerisourcebergen Corp), Share Purchase Agreement (Walgreens Boots Alliance, Inc.)
Access to Information. (a) Sellers agree thatshall, until and shall cause the earlier of the Executory Contract Designation Deadline Acquired Companies to, during ordinary business hours and the termination of this Agreement, upon reasonable advance written notice (i) give Purchaser shall be entitled, through and its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, assets, facilities and books and records of each of the Acquired Companies and operations (including the Purchased Assets ii) permit Purchaser and Assumed Liabilities) of Sellers and their Subsidiariesits Representatives to make such reasonable inspections thereof as Purchaser may reasonably request; provided, including access to systems, data, databases for benefit plan administration; provided however, that no (A) any such investigation or examination inspection shall be permitted conducted in such a manner as not to materially interfere with the extent that it wouldoperations of the Sellers, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller the applicable Acquired Company or any other member of their respective Representatives the Seller Group, and (B) neither Sellers nor an Acquired Company shall be required to disclose information subject to take any action which would constitute or result in a waiver of its attorney-client privilege or violate any Contract or applicable Law; provided, further, that if any event set forth in conflict clauses (A) and (B) in the foregoing proviso would be reasonably likely to occur, the Sellers shall collaborate with Purchaser in good faith to make alternative arrangements to allow for such inspection in a manner that does not result in such event. Purchaser shall indemnify and hold harmless Sellers from and against any confidentiality agreement to which any SellerLosses incurred by Sellers, any Subsidiary of any Seller their Affiliates or any of its or their respective Representatives are bound (in which case, to the extent requested by Purchaserresulting from any action of Purchaser or its Representatives while present on any premises to which Purchaser is granted access hereunder. Notwithstanding anything in this Section 4.2(a) to the contrary, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for (x) Purchaser shall not have access to personnel records if such access could, in the executive officers applicable Seller’s good-faith judgment, violate applicable Law, including the Health Insurance Portability and Accountability Act of Sellers 1996, and (y) any inspection relating to environmental matters by or on behalf of Purchaser shall be directed, prior strictly limited to visual inspections and site visits commonly included in the Closing, to the Chief Financial Officer scope of Parent or his designee“Phase 1” level environmental inspections, and following Purchaser shall not have the Closingright to collect any air, to soil, surface water or ground water samples or perform any invasive or destructive air sampling on, under, at or from any of the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialReal Property.
(b) Any investigation Unless otherwise provided in the Transition Services Agreement, each Seller shall deliver to Purchaser or an Acquired Company the books and examination contemplated by this Section 6.1 shall be records of each Acquired Company in the possession or control of such Seller or any of its Affiliates (and not in the possession of an Acquired Company) as promptly as practicable following the Closing Date (it being agreed that such Seller may retain a copy thereof, at such Seller’s sole cost and expense, subject to restrictions set forth its confidentiality obligations in accordance with Section 6.24 4.3). For a period of seven (7) years after the Closing Date, each Party and its Representatives shall have reasonable access to all of the books and records relating to the Acquired Companies in the possession of the other Parties, and to the employees of the other Parties, to the extent that such access may reasonably be required by such Party in connection with any Action and to the extent permitted under applicable Law. Sellers Such access shall cooperate, be afforded by the applicable Party upon receipt of reasonable advance notice and during normal business hours and shall cause their Subsidiaries and each of their respective Representatives be conducted in such a manner as not to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the operation of the business of Sellers and their Subsidiariesany Party or its respective Affiliates. Without limiting The Party exercising the generality right of the foregoing, subject to Section 6.1(a), access hereunder shall be solely responsible for any costs or expenses incurred by any Party in connection therewith. Each Party shall retain such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts books and records for a period of seven (including any document retention policies of Sellers7) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have years from the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyClosing Date.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ohio Power Co), Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Access to Information. During the Pre-Closing Period, and subject to Section 5.05(b)(vii), (a) Sellers agree thatSDTS shall afford SU and its Representatives and (b) SU shall, until and shall cause GS LLC to, afford SDTS, Oncor and their respective Representatives reasonable access, upon reasonable prior notice and during normal business hours, to (i) the earlier of STX Assets or the Executory Contract Designation Deadline and NTX Assets, as applicable, (ii) the termination of this Agreementsenior management personnel engaged in the Subject STX Operations or the Subject NTX Operations, Purchaser as applicable (in accordance with such reasonable procedures as shall be entitleddetermined by the party providing such access), through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses(iii) properties, books, Contracts, personnelcommitments and records relating to the Subject STX Operations or the Subject NTX Operations, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiariesas applicable, including for purposes of conducting non-intrusive environmental assessments and (iv) all other financial, operating and data and information as the party requesting such access shall reasonably request in writing relating to systemsthe STX Assets or NTX Assets, dataas applicable; provided, databases for benefit plan administration; provided however, that in each case such access shall not interfere unreasonably with the business and operations of the party providing such access and shall not include any invasive environmental sampling or testing, including but not limited to testing or sampling of facility surface and subsurface soils and water, air or building materials (unless the party who owns the relevant property and is providing such access shall consent in writing to such sampling or testing). Nothing contained in this Section 5.03 shall obligate any parties or their respective Affiliates or representatives to violate any applicable Law or breach any duty of confidentiality owed to any Person, whether such duty arises contractually, statutorily or otherwise. In addition, notwithstanding anything to the contrary contained in this Section 5.03, no such investigation party or examination any of its Affiliates shall be permitted obligated to provide to any other party (x) any work papers or similar materials prepared by the independent public accountants of such party or its Affiliates, except to the extent that it wouldsuch accountants agree to provide access to such work papers or similar materials upon such terms and conditions as shall be determined by such accountants in their sole discretion (provided that each party shall use commercially reasonable efforts to seek such access), in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives (y) access to or to disclose information subject to where such access or disclosure would (i) breach any agreement with a third party, (ii) constitute a waiver of or jeopardize the attorney-client or other privilege held by such party or (iii) otherwise violate any applicable Law (provided that each party shall use commercially reasonable efforts to allow for such access or disclosure in conflict with any confidentiality agreement to which any Sellera manner that does not result in such a loss, any Subsidiary breach or violation of any Seller or any of their respective Representatives are bound (in which case, to the extent such privilege). If requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, Oncor prior to the Closing, to but not more than once per calendar month, SU will provide Oncor a written summary in reasonable detail of the Chief Financial Officer of Parent or his designeeactions taken by SU under the LP&L Participation Agreement and all budgets, projections and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives cost estimates prepared in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyprojects contemplated thereby.
Appears in 2 contracts
Sources: Merger Agreement (Hunt Consolidated, Inc.), Merger Agreement (InfraREIT, Inc.)
Access to Information. (a) Sellers agree that, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access Prior to the executive officers Closing Date and Representatives upon reasonable notice from Buyer, Sellers (i) shall give Buyer and its authorized representatives and representatives of Sellers and the properties and other facilitiesits financing sources reasonable access, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to such limitations or procedures as may be necessary to protect the attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which casethe work product doctrine, to all offices, warehouses, plants, stores and other facilities relating to the extent requested by PurchaserBusiness or the Assets and to all books and records of the Business, Sellers (ii) will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, Buyer and all such requests for access persons to the executive make such inspections as they may reasonably request at reasonable times and (iii) will cause its officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, furnish Buyer and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding all such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection persons with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the Assets and the Business as Purchaser they may from time to time reasonably request.
(b) Buyer shall hold and shall cause its employees, subjectagents and other representatives to hold in strict confidence all documents and information concerning the Business to the extent and in accordance with the terms and conditions of the Confidentiality Agreement dated April 23, 1996, between Buyer and T&C; provided, however, that Sellers acknowledge that Buyer may disclose certain information regarding the Business, this Agreement and the transactions contemplated hereby to Buyer's lenders or in connection with the public or private offering of Buyer's securities to the extent required by federal and state securities laws, in each either case, in connection with Buyer's financing of the transactions contemplated by this Agreement and the provision of a line of credit to Buyer from its lenders.
(c) For a period of at least six (6) years following the Closing Date, Buyer shall retain, at Buyer's sole expense, the books, records and other data of the Business transferred pursuant to Section 1.1(a). During such period, Buyer shall afford to Sellers, their counsel and accountants, during normal business hours, reasonable access to such books, records and other data. Following the expiration of such six-year period, Buyer may dispose of any such books, records and other data; provided, however, that before disposing of any such materials it shall first notify T&C and permit T&C, at its sole expense, to remove such materials.
(d) Buyer shall, at the request of any Seller, (i) provide reasonable assistance in the collection of information or documents and (ii) make Buyer's employees available when reasonably requested by Sellers in connection with claims or actions brought by or against third parties based upon events or circumstances concerning Excluded Liabilities. After the Closing Date, Buyer agrees to make available to Sellers for inspection and copying at Sellers' expense, at reasonable times upon request therefor, any records and documents relating to the confidentiality restrictions outlined Business and the Assets which, at the time of such request, are in this Section 6.1Buyer's possession or control. Notwithstanding anything contained herein In addition, Buyer agrees to make available to Sellers such financial data and other information relating to the contraryBusiness and the Assets, Purchaser and will make available such employees of the Business employed by Buyer, as Seller shall consult from time to time reasonably request to permit Seller to prepare any Tax Returns and in connection with Sellers any governmental examination of Tax Returns relating to the Business or the Assets for the periods prior to conducting the Closing Date. Buyer's reasonable expenses in connection therewith shall be reimbursed by Sellers.
(e) After the Closing Date, Sellers agree to make available to Buyer for inspection and copying at Buyer's expense, at reasonable times upon request therefor, any environmental investigations records and documents relating to the Business and the Assets retained by Sellers which, at the time of such request, are in any Seller's possession or examinations control. In addition, Sellers agree to provide reasonable assistance in the collection of information or documents and make available to Buyer any naturefinancial data and other information retained by any Seller relating to the Business and the Assets, including Phase I and Phase II site assessments and any environmental sampling in respect will make available such former employees of the Transferred Real PropertyBusiness that at the time shall be employed by any Seller, as Buyer shall from time to time reasonably request, in connection with claims or actions brought by or against third parties based on events or circumstances concerning the Assets or the Business or the Assumed Liabilities and to permit Buyer to prepare any Tax Returns and in connection with any governmental examination of Tax Returns relating to the Business or the Assets for periods from and after the Closing Date. Sellers' reasonable expenses in connection therewith shall be reimbursed by Buyer.
(f) Prior to the Closing, Sellers agree to make their respective Employees available for reasonable periods of time in order to assist Buyer in its efforts to obtain the financing for the purchase of the Assets; provided, however, that the assistance provided by such Employees in Buyer's financing efforts shall not unduly interfere with the normal duties and responsibilities of such Employees to operate the business of Sellers.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Town & Country Corp), Asset Purchase Agreement (Commemorative Brands Inc)
Access to Information. (a) Sellers agree that, until prior to the earlier of the Executory Contract Designation Deadline and the termination of this AgreementClosing Date, Purchaser Buyer shall be entitled, through its Representatives or otherwiseofficers, employees and representatives (including legal advisors, Financing Sources, consultants, appraisers and accountants), to have make such investigation of the properties (including non-invasive environmental site assessments), businesses and operations of Sellers’ businesses (including any of the Properties) and such examination of the Books and Records of Sellers’ businesses, the Acquired Assets and the Assumed Liabilities as is reasonable access (and reasonably requested) and to make extracts and copies of such Books and Records. Any such investigation and examination shall be conducted in a reasonable manner (and shall not unreasonably interfere with the operations of Sellers), during regular business hours upon reasonable advance notice and under reasonable circumstances and shall be subject to any applicable restrictions under applicable Law. Sellers shall cause the officers, employees, consultants, agents, accountants, attorneys and other representatives of Sellers to reasonably cooperate with Buyer and Buyer’s representatives in connection with such investigation and examination, and Buyer and Buyer’s representatives shall reasonably cooperate with Sellers and Sellers’ representatives and Buyer and Buyer’s representatives shall, at all times and at the discretion of Sellers, take all reasonable measures to minimize any disruption to Sellers’ business. Notwithstanding anything herein to the executive officers and Representatives of Sellers and the properties and other facilitiescontrary, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, would (x) require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Sellerprivilege, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, provided that Sellers will shall use reasonable best efforts to seek provide information in response to such an amendment investigation or appropriate waiver, examination in a form or necessary consents, as may be required manner that would not waive such attorney-client privilege (including by redacting or otherwise not disclosing any portion thereof the disclosure of which would jeopardize such privilege) or (y) conflict with any confidentiality obligations to avoid such conflict, which the Sellers or restructure the form any of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyare bound.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sears Holdings Corp), Asset Purchase Agreement (Esl Partners, L.P.)
Access to Information. (a) Sellers agree that, From the date of this Agreement until the earlier of the Executory Contract Designation Deadline Closing Date, upon reasonable prior notice, and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, except to have reasonable access ensure compliance with any applicable Laws and subject to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations any applicable privileges (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(aprivilege), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries respective Affiliates and each of their respective Representatives to cooperate, with Purchaser (i) afford the Representatives of the Buyer and its Representatives in connection with such investigation Affiliates reasonable access, during normal business hours, to the offices, properties, books and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality records of the foregoing, subject to Section 6.1(a), such investigation Business and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellersii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s the Representatives of the Buyer such additional financial and operating data and other information regarding the Business as Purchaser the Buyer may from time to time reasonably requestrequest for the purpose of preparing to operate the Business following the Closing; provided, subjecthowever, that such investigation shall not unreasonably interfere with any of the businesses or operations of the Sellers or any of their Affiliates; and provided, further, that the auditors and accountants of the Sellers or any of their Affiliates shall not be obliged to make any work papers available to any Person except in each caseaccordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by the Sellers, the Buyer shall enter into a customary joint defense agreement with the Sellers and such of their Affiliates as they request with respect to any information to be provided to the confidentiality restrictions outlined in Buyer pursuant to this Section 6.15.02(a). Without limiting the foregoing, the Buyer shall not conduct, without the prior written consent of the Sellers, any environmental investigation at any property affiliated with any Seller, any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any property associated or affiliated in any way with the Transferred Assets or the Business. Notwithstanding anything to the contrary contained herein herein, prior to the Closing, without the prior written consent of the Sellers, which may be withheld for any reason, neither the Buyer nor any of its Representatives shall contact any employees of, suppliers to, or customers of any GE Entity or their Affiliates; provided, however that Buyer may contact employees of the Business with the written consent of GE (which consent may be provided by email) and in consultation with GE.
(b) Notwithstanding anything in this Agreement to the contrary, Purchaser the Sellers shall consult with Sellers not be required, prior to conducting the Closing, to disclose, or cause the disclosure of, to the Buyer or its Affiliates or Representatives (or provide access to any environmental investigations offices, properties, books or examinations records of the Sellers or any of their Affiliates that could result in the disclosure to such persons or others of) any confidential information relating to trade secrets, proprietary know-how, processes, Software or patent, trademark, tradename, service ▇▇▇▇ or copyright applications or product development, or pricing and marketing plans, but only in any such case to the extent that such information would (x) be likely to result in the loss of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect attorney-client privilege of the Transferred Real PropertyGE Entities except to the extent that such privilege may be preserved by entering into a common interest or similar agreement for the purpose of preserving such privilege, or (y) contravene or violate any Law, (any such restricted information, the “Restricted Information”), nor shall the Sellers be required to permit or cause others to permit the Buyer or its Affiliates or Representatives to have access to or to copy or remove from the offices or properties of the Sellers or any of their Affiliates any documents, drawings or other materials that might reveal any such Restricted Information.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Clarcor Inc.)
Access to Information. (a) Sellers agree that, From the date of this Agreement until the earlier of the Executory Contract Designation Deadline Closing Date, upon reasonable prior notice, and the termination of this Agreement, Purchaser shall except as determined in good faith to be entitled, through its Representatives or otherwise, appropriate to have reasonable access ensure compliance with any applicable Laws and subject to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations any applicable privileges (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any privilege) and contractual confidentiality agreement to which any Sellerobligations, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateuse, and shall cause their Subsidiaries and Affiliates to use, reasonable best efforts to cause each of their respective Representatives to cooperateto, with Purchaser and its (i) afford the Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingBuyer reasonable access, subject during normal business hours, to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), the offices, properties and other facilitiesproperties, and books, Contracts books and records of the Business and (including any document retention policies of Sellersii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s the Representatives of the Buyer such additional financial and operating data and other information regarding the Business or the Transferred Assets as Purchaser the Buyer may from time to time reasonably request for the purpose of preparing to operate the Business following the Closing; provided, however, that such investigation shall not unreasonably interfere with any of the businesses or operations of the Sellers or any of their Affiliates; and provided, further, that the auditors and accountants of the Sellers or any of their Affiliates shall not be obliged to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by the Sellers, the Buyer shall enter into a customary joint defense agreement with the Sellers and such of their Affiliates as they request with respect to any information to be provided to the Buyer or its Representatives pursuant to this Section 5.02(a). Without limiting the foregoing, prior to the Closing, the Buyer shall not conduct, without the prior written consent of the Sellers, any environmental investigation at any property owned or leased by any Seller in the operation of the Business, and in no event may any such environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any such properties. Notwithstanding anything to the contrary contained herein, prior to the Closing, without the prior consent of the Sellers, which shall not be unreasonably withheld (and which must be in writing only for contacts with suppliers or customers), neither the Buyer nor any of its Representatives shall contact any employees of, suppliers to, or customers of any Seller or its Affiliates, except for contacts by the Buyer in the ordinary course of business consistent with past practices; provided that if a Seller does provide the Buyer such prior consent, the Buyer and any of its Representatives may continue to contact such employee, supplier or customer (x) unless such consent explicitly states otherwise or (y) until such Seller informs the Buyer or any of its Representatives that they may no longer contact such employee, supplier or customer.
(b) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with any reasonable business purpose, including the preparation of Tax Returns, addressing claims related to Excluded Liabilities, preparing financial statements, U.S. Securities and Exchange Commission reporting obligations and the determination of any matter relating to the rights or obligations of the Sellers or any of their Affiliates under this Agreement, the Business prior to the Closing or the Companion Agreements, upon reasonable prior notice and at the Sellers’ sole cost and expense, and except as determined in good faith to be appropriate to ensure compliance with any applicable Laws and subject to any applicable privileges (including the attorney-client privilege) and contractual confidentiality obligations, the Buyer shall and shall cause its Affiliates and Representatives to: (i) afford the Representatives of the Sellers and their Affiliates reasonable access (including the right to make, at the Sellers’ expense, photocopies), during normal business hours, to the offices, properties, books and records of the Buyer and its Affiliates and Representatives in respect of the Transferred Assets; (ii) furnish to the Representatives of the Sellers and their Affiliates such additional financial and other information regarding the Transferred Assets as is in the Buyer’s possession and control as the Sellers or their Representatives may from time to time reasonably request; and (iii) make available to the Representatives of the Sellers and their Affiliates the employees of the Buyer and its Affiliates whose assistance, subjectexpertise, testimony, notes and recollections or presence is necessary to assist the Sellers in connection with the Sellers’ inquiries for any of the purposes referred to above, including the presence of such persons as witnesses in hearings or trials for such purposes; provided, however, that such investigation shall not unreasonably interfere with the business or operations of the Buyer or any of its Affiliates; and provided, further, that the auditors and accountants of the Buyer or its Affiliates shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by the Buyer, the Sellers shall enter into a customary joint defense agreement with the Buyer and its Affiliates with respect to any information to be provided to the Sellers pursuant to this Section 5.02(b). No information, books, records or other documents accessed by the Sellers or their respective Affiliates or Representatives pursuant to this Section 5.02(b) shall be used for any purposes other than as expressly permitted by this Section 5.02(b).
(c) Notwithstanding anything in this Agreement to the contrary, the Sellers shall not be required, prior to the Closing, to disclose, or cause the disclosure of, to the Buyer or its Affiliates or Representatives (or provide access to any offices, properties, books or records of the Sellers or any of their Affiliates that could result in the disclosure to such persons or others of) any confidential information relating to trade secrets, proprietary know-how, processes or patent, trademark, trade name, service ▇▇▇▇ or copyright applications or relating to any product development or pricing and marketing plans to the extent counsel to the Sellers, after consultation with counsel to the Buyer, advises that doing so would likely be a violation of applicable antitrust Laws, nor shall the Sellers be required to permit or cause others to permit the Buyer or its Affiliates or Representatives to have access to or to copy or remove from the offices or properties of the Sellers or any of their Affiliates any documents, drawings or other materials that might reveal any such confidential information.
(d) During the period from the date of this Agreement through the earlier of the Closing Date or the termination of this Agreement pursuant to Article VIII, the Sellers shall periodically deliver to the Buyer, at intervals and in a form consistent with past practice between the Sellers and the Buyer during the negotiation of the transactions contemplated by this Agreement and which will be prepared consistent with the Agreed Financial Methodology, the following financial information related to the Business:
(i) at the end of each fiscal year, (A) components of (1) the unaudited balance sheet of the Business as of the end of such year and (2) the unaudited statement of income for the Business for such year, in each case, in the format consistent with the 2015 Data (the financial information in these subsections (A)(1) and (A)(2) is referred to collectively herein as the “Interim Annual Data”), (B) the financial information described on Section 5.02(d)(i) of the Disclosure Schedule as “Manufacturing Production Cost by SKU” for such year (the financial information in this subsection (B) is referred to as the “Interim Additional Financial Information”) and (C) certain other financial information as described on Section 5.02(d)(i) of the Disclosure Schedule;
(ii) at the end of each fiscal quarter after the date hereof, quarterly financial information with respect to volume by SKU and operating report detail;
(iii) at the end of each fiscal quarter after the date hereof, the financial information described on Section 5.02(d)(i) of the Disclosure Schedule as “Income Statements”, “Manufacturing Production Cost by SKU”, “Manufacturing Variance Summary Data”, “Manufacturing Variance GL Data”, “Freight Cost”, “Plant PPV, HQ PPV, & Misc. Cost of W/S Sales”, “Centrally Managed Expenses”, “Shared Services Expenses”, “Asset Disposals”, “Agency flow data”, “Agency volume by SKU”, and “Manufacturing Plant Headcount”, in each case solely related to the confidentiality restrictions outlined Business for the quarter then ended (the financial information described in subsections (ii) and (iii) of this Section 6.15.02(d) is referred to collectively herein as the “Interim Quarterly Data”); and
(iv) a good faith calculation of the Target Net Working Capital Amount based on the books and records of the Business that were used in preparing the 2015 Data. Notwithstanding anything contained herein The Sellers shall deliver to the contraryBuyer the data contemplated by this Section 5.02(d) promptly upon completion, Purchaser shall consult but in any event no later than, (w) one hundred twenty (120) days after the end of the applicable fiscal year with Sellers respect to deliveries made pursuant to Section 5.02(d)(i), (x) fifteen (15) Business Days after the end of the applicable quarter with respect to deliveries made pursuant to Section 5.02(d)(ii), (y) one hundred twenty (120) days after the end of the applicable fiscal quarter with respect to deliveries made pursuant to Section 5.02(d)(iii), and (z) prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in the Closing with respect to the deliveries made pursuant to Section 5.02(d)(iv). The calculation of the Transferred Real PropertyTarget Net Working Capital Amount will be (I) determined in accordance with the guidelines set forth on Section B-1 of the Disclosure Schedule and in accordance with the Agreed Financial Methodology and (II) subject to reasonable verification by the Buyer within thirty (30) days of delivery of such calculation.
(e) The Sellers will, and will cause their Affiliates to, cooperate with the Buyer’s completion of its due diligence by providing to the Buyer certain identified information described in Section 5.02(e) of the Disclosure Schedule. With regard to the continuing diligence of the Buyer under this Agreement that takes place between the signing of this Agreement and the Closing, the parties agree to deal with one another in good faith consistent with historical practices for addressing economic disputes.
(f) If any Seller enters into any Pre-Closing Material Contracts between the date hereof and the Closing Date, the Sellers will provide the Buyer as promptly as reasonably practicable prior to the Closing with true, correct and complete copies of all such contracts or agreements. If any Seller enters into any Shared Contracts or Specified Non-Transferring Contracts between the date hereof and the Closing Date, the Sellers will provide the Buyer as promptly as reasonably practicable with true, correct and complete copies of all portions of such Shared Contracts or Specified Non-Transferring Contracts, as applicable, that relate to the Business (together with such other portions thereof as are necessary to comprehend the terms thereof that apply to the Business).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Coca Cola Bottling Co Consolidated /De/)
Access to Information. Upon reasonable notice, the --------------------- Company shall (aand shall cause each of its subsidiaries to) Sellers agree thatafford to officers, until employees, counsel, accountants and other authorized representatives of Acquiror ("Acquiror's Representatives") reasonable access, during normal business hours throughout the earlier period prior to the Effective Time, to its properties, books and records and, during such period, shall (and shall cause each of its subsidiaries to) furnish promptly to Acquiror's Representatives all information concerning the business, properties and personnel of the Executory Contract Designation Deadline Company and its subsidiaries as may reasonably be requested, including the opportunity to observe the full physical chain-wide inventory count of the Company and its subsidiaries to be taken in October 1996 (which inventory count shall be completed no later than October 31, 1996), provided that no investigation pursuant to this Section 6.5 shall affect or be deemed to modify any of the representations or warranties made by the Company. Acquiror agrees that it will not, and will cause Acquiror's Representatives not to, use any information obtained pursuant to this Section 6.5 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement. In connection with the foregoing, the Company agrees to cause the Company's independent accountants to provide their workpapers to Acquiror upon the terms and subject to the conditions on which such workpapers have previously been provided to Acquiror. The Confidentiality Agreement, dated July 16, 1996 (the "Confidentiality Agreement"), between Acquiror and the Company shall apply with respect to the information furnished hereunder and survive any termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access subject to the executive officers terms and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions conditions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyConfidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Toys R Us Inc), Merger Agreement (Toys R Us Inc)
Access to Information. (a) Sellers agree that, From the time this Agreement is signed by all of the parties hereto until the earlier of Closing, Parent shall use its commercially reasonable efforts to cause the Executory Contract Designation Deadline Companies and their respective officers, directors, employees, agents, representatives, accountants and counsel to (i) afford the termination of this AgreementPurchasers and their authorized representatives reasonable access, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access subject to the executive officers Confidentiality Agreements and Representatives of Sellers applicable Law and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted solely to the extent that it would, such access is available to Parent in Sellers’ reasonable determination, require the ordinary course of business and can be provided to the Purchasers without any Seller, any Subsidiary breach of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which caseContract, to the extent requested by Purchaseroffices and properties of each Company and, Sellers will use reasonable best efforts to seek an amendment or appropriate waiveron Parent’s premises, or necessary consentsthe Books and Records of each Company, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access and (ii) make available to the executive officers of Sellers shall be directedofficers, prior to the Closing, to the Chief Financial Officer of Parent or his designeeemployees, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld authorized agents and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality representatives of the foregoingPurchasers, subject to Section 6.1(a)on Parent’s premises, such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information regarding the Companies (or copies thereof) as any Purchaser may from time to time reasonably request, subjectsolely to the extent such access is available to Parent in the ordinary course of business and can be provided to the Purchasers without any violation of Law or breach of Contract; provided, however, that: (A) any such access or availability shall be provided at the expense of the Purchaser(s) requesting such access or available, during normal business hours upon reasonable advance notice to Parent, under the supervision of Parent’s personnel and in such a manner as not to interfere with the normal operations of the Companies; (B) all requests by the Purchasers for access or availability pursuant to this Section 5.02 shall be submitted or directed exclusively to an individual to be designated by Parent; and (C) Parent and the Companies shall not be required to provide any Books and Records or reports based thereon that they do not maintain or prepare in the ordinary course of their business. Notwithstanding anything to the contrary in this Agreement, Parent shall not be required to disclose any information to the Purchasers if such disclosure would, in Parent’s sole discretion, (i) cause significant competitive harm to Parent or the Companies and their respective businesses if the transactions contemplated hereby are not consummated, (ii) jeopardize any attorney-client or other legal privilege or (iii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement.
(b) Following the Closing, as soon as available but in no event later than February 14, 2008, Master LLC shall provide to Parent the audited combined consolidated balance sheet of the Companies and the related audited combined consolidated statements of operations, stockholders’ or members’ equity and cash flows of the Companies for the period beginning on January 1, 2007 and ending on December 31, 2007. In addition, as soon as available but in no event later than 90 days following the Closing Date, Master LLC shall provide to Parent, the audited combined consolidated balance sheet of the Companies and the related audited combined consolidated statements of operations, stockholders’ or members’ equity and cash flows of the Companies for the period beginning on January 1, 2008 and ending on the Closing Date (such period ending on the Closing Date, the “Stub Period”). In each case, such financial reports shall be accompanied by the report thereon of the Auditors (as such term is defined in the LLC Agreement). The Purchasers and Master LLC shall cause the Auditors to provide such consents as are required for Parent to comply with the confidentiality restrictions outlined Exchange Act and the rules and regulations promulgated thereunder, and shall otherwise cooperate with Parent in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult order that Parent may comply with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling such obligations in respect of Master LLC. The fees and expenses of the Transferred Real PropertyAuditors for preparing the audited financial statements relating to the Stub Period shall be borne by Parent.
Appears in 2 contracts
Sources: Securities Purchase Agreement (HLTH Corp), Securities Purchase Agreement (Emdeon Inc.)
Access to Information. (a) Sellers agree thatAfter Closing, until the earlier of the Executory Contract Designation Deadline Buyer will, and the termination of this Agreement, Purchaser shall be entitled, through will cause its Representatives or otherwiseto, afford to have Seller, including its Representatives, at Seller's expense, reasonable access to all books, records, files and documents related to the executive officers Business to the extent necessary to permit Seller to prepare and Representatives of Sellers file its tax returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in any other investigation and defend any Proceedings relating to or involving Seller or the Business for which Seller may be responsible, to discharge its obligations under this Agreement and the properties other Related Documents to which its is a party and for other facilitiesreasonable purposes and will afford Seller reasonable assistance in connection therewith. Buyer will cause such records to be maintained for not less than seven years from the Closing Date and will not dispose of such records without first offering in writing to deliver them to Seller; provided, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no in the event that Buyer transfers all or a portion of the Business to any third party during such investigation period, Buyer may transfer to such third party all or examination a portion of the books, records, files and documents related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.2(b). In addition, after the Closing Date, at Seller's request, Buyer shall be permitted make available to the extent that it wouldSeller and its Affiliates, in Sellers’ reasonable determinationemployees, require any Sellerrepresentatives and agents, any Subsidiary those employees of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent Buyer requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with any Proceeding, including to provide testimony, to be deposed, to act as witnesses and to assist counsel; provided, however, that (x) such investigation and examination, and each of Purchaser and its Representatives access to such employees shall use their reasonable best efforts to not materially unreasonably interfere with the business of Sellers and their Subsidiaries. Without limiting the generality normal conduct of the foregoing, subject operations of Buyer and (y) Seller shall reimburse Buyer for the allocated time charges of such employees and the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertySeller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Cap Rock Energy Corp), Purchase and Sale Agreement (Citizens Utilities Co)
Access to Information. The Acquiror shall afford Acquiree its accountants, counsel and other representatives (a) Sellers agree thatincluding the Acquiree Shareholders), until the earlier of the Executory Contract Designation Deadline and the termination of this Agreementreasonable access, Purchaser shall be entitled, through its Representatives or otherwiseduring normal business hours, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businessesproperties, books, Contracts, personnel, records and operations (including personnel of the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require Acquiror at any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, time prior to the ClosingClosing in order to enable Acquiree obtain all information concerning the business, to assets and properties, results of operations and personnel of the Chief Financial Officer of Parent or his designee, and following Acquiror as Acquiree may reasonably request. No information obtained in the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld foregoing investigation by Acquiree pursuant to this Section 6.1(a7.1 shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the Acquiror or the Acquiror Principal Shareholders to consummate the transactions contemplated hereby. The Acquiree shall afford Acquiror its accountants, counsel and other representatives (including the Acquiror Shareholders), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperatereasonable access, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the during normal business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each casehours, to the confidentiality restrictions outlined properties, books, records and personnel of the Acquiree at any time prior to the Closing in order to enable Acquiror obtain all information concerning the business, assets and properties, results of operations and personnel of the Acquiree as Acquiror may reasonably request. No information obtained in the foregoing investigation by Acquiror pursuant to this Section 6.1. Notwithstanding anything 7.1 shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect obligations of the Transferred Real PropertyAcquiree or the Acquiree Principal Shareholders to consummate the transactions contemplated hereby.
Appears in 2 contracts
Sources: Share Exchange Agreement (Nac Global Technologies, Inc.), Share Exchange Agreement (Lipidviro Tech Inc)
Access to Information. (a) Subject to Section 5.03(b) below, Sellers covenant and agree that, from the date of this Agreement until the earlier of Closing, (x) subject to any limitations on disclosures to which ICO and Parent agreed in the Executory Contract Designation Deadline Confidentiality Agreement, (y) subject to any nondisclosure obligations to third Persons and (z) subject to any restrictions imposed by applicable Legal Requirements, from the termination date of this AgreementAgreement until the Closing, Purchaser Sellers shall be entitleduse reasonable efforts (and shall cause the Acquired Companies to use reasonable efforts) (i) to afford to the Buyer Parties and their Representatives access, through its Representatives or otherwiseat reasonable times upon reasonable prior notice, to have reasonable access the officers, employees, agents, properties, offices and other facilities of such Seller Companies and to their Books and Records and (ii) to furnish promptly to the executive officers Buyer Parties and their Representatives of Sellers and such information concerning the properties and other facilitiesproperties, businesses, books, Contracts, personnelcontracts, records and operations personnel (including the Purchased Assets financial, operating and Assumed Liabilitiesother data and information) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted related to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, Business as may be required reasonably requested, from time to avoid such conflicttime, by or restructure on behalf of the form of access, so as to permit the access requested)Buyer Parties; provided furtherthat the Buyer Parties and their Representatives (x) comply with the provisions of the Confidentiality Agreement, that notwithstanding (y) comply with all applicable safety and other rules of conduct of the notice provisions in Section 9.2 hereof, all such requests for access to facility and (z) do not unreasonably interfere with the executive officers operation of Sellers shall be directed, prior to the Closing, to facility or the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialpersonnel involved.
(b) Any investigation ICO and examination contemplated by Parent may as each deems reasonably advisable and necessary designate any competitively sensitive information provided to the other pursuant to this Section 6.1 5.03 as "outside consultant only" and such information shall be subject provided only to restrictions set forth the outside consultant of the recipient who shall execute a confidentiality agreement in Section 6.24 and under applicable Law. Sellers a form satisfactory to ICO which shall cooperate, and shall cause their Subsidiaries and each restrict the disclosure of their respective Representatives such information including to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers Buyer Parties and their Subsidiaries. Without limiting Affiliates.
(c) All nonpublic information provided to the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries Buyer Parties and their Representatives shall prepare pursuant to Section 5.03 and furnish to Purchaser’s Representatives such additional financial and operating data and other all information as Purchaser may from time to time reasonably request, subject, in each case, made available to the confidentiality restrictions outlined Buyer Parties in this Section 6.1. Notwithstanding anything contained herein any data room (including the internet data room) pertaining to the contrary, Purchaser Seller Companies shall consult with Sellers prior be deemed to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertybe Confidential Information.
Appears in 2 contracts
Sources: Purchase Agreement (Ico Inc), Purchase Agreement (Varco International Inc /De/)
Access to Information. (a) Sellers agree thatAfter Closing, until the earlier of the Executory Contract Designation Deadline Buyer shall, and the termination of this Agreement, Purchaser shall be entitled, through cause its Representatives to, at no cost to Buyer or otherwiseits Representatives, afford to have Seller, including its Representatives, on reasonable written notice and at reasonable times, reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, all books, Contractspapers and records related to the Business and Purchased Assets, personnelas necessary for Seller to satisfy Legal Requirements. Buyer shall cause such records to be maintained for not less than seven (7) years from the Closing Date and will not dispose of such records without first offering in writing to deliver them to Seller; provided, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no in the event that Buyer transfers all or a portion of the Business to any third party during such investigation period, Buyer may transfer to such third party all or examination a portion of the books, papers, and records related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.2(a). In addition, on and after the Closing Date, at Seller’s request, Buyer shall be permitted make available to Seller and its Representatives, on reasonable written notice and at reasonable times, those employees of Buyer reasonably requested by Seller in connection with any Proceeding relating to the extent Business, including to provide testimony, to be deposed, to act as witnesses and to assist counsel; provided, however, that it would(i) such access to such employees shall not unreasonably interfere with the normal conduct of the operations of Buyer and (ii) Seller shall reimburse Buyer for the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Seller. Without limiting the application of Section 6.1(f), in Sellers’ reasonable determination, require any Seller, any Subsidiary of any all documents or information furnished by Buyer or obtained by Seller or any of their respective its Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 hereunder shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a6.1(f), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Uil Holdings Corp), Asset Purchase Agreement
Access to Information. (ai) Sellers agree thatwill afford Buyer and its financial advisors, until the earlier of the Executory Contract Designation Deadline accountants, counsel and the termination of this Agreementother representatives reasonable access during normal business hours, Purchaser shall be entitled, through its Representatives or otherwiseupon reasonable notice, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businessesproperties, books, Contractsrecords, personnelfinancial statements and personnel of the Company during the period prior to the Closing to obtain all information concerning the business, records and operations (including the Purchased Assets status of product development efforts, properties, results of operations and Assumed Liabilitiespersonnel of the Company, as Buyer may reasonably request. No information or knowledge obtained by Buyer in any investigation pursuant to this Section 6.4 will affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the parties to consummate the Acquisition.
(ii) of Buyer will afford Sellers and their Subsidiariesits financial advisors, including underwriters, accountants, counsel and other representatives reasonable access to systemsduring normal business hours, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ upon reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which casenotice, to the extent requested by Purchaserproperties, Sellers will use reasonable best efforts books, records, financial statements and personnel of Buyer during the period prior to seek an amendment or appropriate waiverClosing to obtain all information concerning the business, or necessary consentsincluding the status of product development efforts, properties, results of operations and personnel of Buyer, as Sellers may reasonably request. No information or knowledge obtained by Sellers in any investigation pursuant to this Section 6.4 will affect or be required deemed to avoid such conflict, modify any representation or restructure warranty contained herein or the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access conditions to the executive officers obligations of Sellers the parties to consummate the Acquisition.
(iii) Notwithstanding anything to the contrary contained herein, each party (“Subject Party”) hereby agrees that by proceeding with the Closing, it shall be directed, conclusively deemed to have waived for all purposes hereunder any inaccuracy of representation or breach of warranty by another party which is actually known by the Subject Party prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Union Street Acquisition Corp.), Membership Interest Purchase Agreement (Union Street Acquisition Corp.)
Access to Information. Seller shall, and shall cause the Company to, afford to Buyer’s officers, directors, employees, accountants, counsel, consultants, advisors and agents (a“Representatives”) Sellers agree thatfree and full access to and the right to inspect, until the earlier during normal business hours, all of the Executory Contract Designation Deadline Real Property, properties, Assets, records, Contracts and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access other documents related to the executive officers Company and Representatives shall permit them to consult with the officers, employees, accountants, counsel and agents for the purpose of Sellers making such investigation of the Company as Buyer shall desire to make. Seller shall furnish to Buyer all such documents and the properties copies of documents and other facilities, businesses, books, Contracts, personnel, records and operations (including information with respect to the Purchased Assets Company and Assumed Liabilities) copies of Sellers and their Subsidiariesany working papers relating thereto as Buyer may request, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted all to the extent the foregoing items are within the possession or control of Seller or the Company. Without limiting the foregoing, Seller shall permit Buyer and its Representatives to conduct environmental due diligence, investigations and examinations of the Company and the Real Property, including the collecting and analysis of samples of indoor or outdoor air, surface water, groundwater or surface or subsurface soils, provided that it would, in Sellers’ (i) Buyer must give Seller and Manager reasonable determination, require any Seller, any Subsidiary prior telephone or written notice of any and all inspections or tests, and with respect to any intrusive inspection or test (i.e., core sampling) must obtain Seller’s prior written consent (which consent will not be unreasonably withheld or conditioned), and (ii) Buyer shall not interfere with the operations of the Tenant Parties. Buyer shall bear the cost of all inspections or tests and shall indemnify and hold Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Sellerand the Company harmless from and against all claims, any Subsidiary of any Seller or any of their respective Representatives are bound (in which casedamages, injuries, accidents, losses and expenses relating to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form activities of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, Buyer and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld its Representatives pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material6.3.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Tiptree Financial Inc.), Membership Interest Purchase Agreement (National Health Investors Inc)
Access to Information. (a) Sellers agree that, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser The Confidentiality Agreements shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to terminate on the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation After the Closing, upon reasonable written notice, to the extent permitted by the Organizational Documents of the Companies, Buyer shall furnish or cause to be furnished to Sellers and examination contemplated their Representatives access, during normal business hours, to such information, the Books and Records and assistance, in each case to the extent in Buyer’s possession or control, relating to the business of the Companies as is reasonably necessary for the preparation and filing of any Tax Return, the defense of any Tax claim or assessment or in connection with the prosecution or defense of any investigation, claim (including any insurance claims) or legal proceeding of Sellers, the Companies or any of their Affiliates or in order to enable Sellers to comply with their obligations (or confirm compliance by Buyer with its obligations) under this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable LawAgreement. Sellers shall cooperate, promptly reimburse Buyer for reasonable documented out-of-pocket costs and shall cause their Subsidiaries and each of their respective Representatives expenses incurred in assisting Sellers pursuant to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to this Section 6.1(a5.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers .
(and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellersc) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each caseBuyer shall, to the confidentiality restrictions outlined in extent permitted by the Organizational Documents of the Companies, preserve and keep the Books and Records for at least five years following the Closing Date or for such longer period as may be required by applicable Law.
(d) Sellers agree not to disclose, or allow their Affiliates and the respective Representatives of the foregoing to disclose, to others of any Confidential Information for a period of two (2) years after the Closing Date, except that any Seller may disclose Confidential Information to its Affiliates and Representatives, provided that such Seller shall be responsible for any breach of the applicable terms of this Section 6.1. Notwithstanding anything contained herein 5.1(d) by any of its Affiliates or Representatives to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertywhich it disclosed Confidential Information.
Appears in 2 contracts
Sources: Purchase Agreement, Purchase Agreement (Natural Resource Partners Lp)
Access to Information. (a) Sellers agree that, From the date hereof until the earlier of (x) the Executory Contract Designation Deadline Closing and the (y) any termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld Agreement pursuant to this Section 6.1(a)7.1, upon reasonable notice, Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries and each of their respective Representatives its officers, directors, employees, auditors and agents to cooperate(i) afford the officers, with employees and representatives of Purchaser reasonable access, during normal business hours, to the offices, plants, warehouses, properties, Contracts, Tax Returns, books and its Representatives in connection with such investigation records of Seller and examinationthe employees of Seller set forth on Schedule 4.3(1), and each (ii) furnish to the officers, employees and representatives of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information regarding the operations of Seller as are then in existence and as Purchaser may from time to time reasonably request; provided, subjecthowever, that such investigations shall not (i) unreasonably interfere with the operations of Seller or any of their Affiliates or (ii) include any rights to perform or conduct any Phase II environmental or other physically destructive testing or investigations without the prior written consent of Seller (which consent Seller shall have the right to withhold or condition in each caseits sole and absolute discretion). All information provided pursuant to this Section 4.3 shall be governed by the terms of the confidentiality agreement in place between Seller and Purchaser and all discussions by Purchaser or its representatives with any employees of Seller shall be coordinated only through Seller’s senior management and such senior management having the right but not the obligation to participate in or monitor such discussions; provided, however, Purchaser and its representatives shall have the right to meet privately with any employees and other independent contractors of Seller set forth on Schedule 4.3(2) without Seller’s senior management or other representatives participating in such meetings to the confidentiality restrictions outlined extent the substance of such meetings will be limited to discussions of and negotiations about such individual’s future employment, professional goals, role in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect future of the Transferred Real PropertyBusiness and future developments of the Business.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Cancer Genetics, Inc), Asset Purchase Agreement
Access to Information. (a) Sellers agree thatSubject to Section 5.7(b), from the date hereof until the earlier of the Executory Contract Designation Deadline Closing Date, Seller and the termination of this AgreementCompany shall (i) give Parent and Buyer, Purchaser shall be entitledtheir respective counsel, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties auditors and other facilitiesauthorized representatives reasonable access, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which caseduring normal business hours, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, books and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality records of the foregoing, subject to Section 6.1(a), Company and such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information relating to the Company as Purchaser such Persons may from time to time reasonably request, subjectand (ii) instruct the employees of Seller to cooperate with Parent and Buyer in their investigation of the Company. No investigation by Parent or other information received by Parent shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller hereunder.
(b) During the period commencing from the date hereof until the Closing Date, upon request to Seller, Buyer shall have the right during a period of fourteen (14) consecutive days mutually agreed to with Seller to inspect Seller’s Assigned Technology files on a computer supplied by Seller at a location specified by Seller during normal business hours in each caseorder to confirm that the materials contained in such files are included in the exhibits of the Contribution Agreement setting forth the Assigned Technology; provided that Buyer shall have no right to make, request or take copies of such materials; nor shall Buyer have the right to take notes regarding such materials; provided that Buyer shall have the confidentiality restrictions outlined right to take notes solely for the purpose of assisting it to confirm that the materials contained in this Section 6.1. Notwithstanding anything contained herein to such files are included in the contrary, Purchaser shall consult exhibits of the Contribution Agreement setting forth the Assigned Technology so long as Buyer provides Seller with Sellers a copy of any such notes prior to conducting any environmental investigations or examinations leaving the location of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyits review.
Appears in 2 contracts
Sources: Membership Interest Purchase and Sale Agreement, Membership Interest Purchase and Sale Agreement (Rentech Inc /Co/)
Access to Information. (a) Sellers agree that, From the date hereof until the earlier of the Executory Contract Designation Deadline and the Closing Date or termination of this AgreementAgreement in accordance with its terms, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateHoldCo shall, and shall cause their Subsidiaries its Representatives to, (i) afford Buyer Parties and each of their respective Representatives reasonable access, during regular business hours and upon reasonable advance notice, to cooperate, with Purchaser the Business and its Representatives in connection with such investigation and examinationany Assets or interests related thereto, and each of Purchaser and its Representatives shall use their reasonable best efforts (ii) furnish, or cause to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingbe furnished, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers Buyer Parties and their respective Subsidiaries identified by such executive officers)Representatives (including, officeswithout limitation, properties and other facilities, and books, Contracts and records (including any document retention policies of SellersBuyer Parties’ lenders) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time that is available to time reasonably request, subjectthe Companies’ Representatives with respect to the Business, in each casecase of clauses (i) and (ii), as shall be reasonably requested by any Buyer Party or their respective Representatives for the purpose of consummating the transactions contemplated by this Agreement and preparing to operate the Business and own the Assets following the Closing. Buyer Parties agree that such investigation shall be conducted in such a manner as not to interfere unreasonably with the operations of the Companies.
(b) Notwithstanding the foregoing, (i) all requests for access pursuant to this Section 4.1 shall be made with at least twenty-four (24) hours’ prior written notice to ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇, who shall be solely responsible for coordinating all such requests and all access permitted hereunder, (ii) any investigation of the Real Property shall be limited to visual inspections and shall not include any intrusive investigation or collection of samples of soil, groundwater, indoor air, surface water, wastewater, building materials or any other environmental media without the Companies’ prior written approval; provided, that Buyer shall, at its sole cost and expense, promptly repair any damage to the Real Property or any other property owned by a Person other than Buyer arising from or caused by any such investigation, and shall restore the Real Property and such other third party property to substantially similar condition as existed prior to such investigation, and shall indemnify, defend and hold harmless the Company and its respective Affiliates from and against any personal injury or property damage claims, Liabilities, judgments or expenses (including reasonable attorneys’ fees) incurred by any of them arising or resulting therefrom (provided, however, such indemnification and agreement to defend and hold harmless shall not apply to (a) the mere discovery a pre-existing environmental or physical condition, (b) any existing violations of law or any negligence or willful misconduct of HoldCo, its Affiliates, agents or representatives or (c) any consequential, punitive or special damages), (iii) Buyer Parties and their respective Representatives shall not contact any of the Employees, customers or vendors of the Companies, whether in person or by telephone, mail or other means of communication, in connection with the Transaction, without the specific prior authorization of ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇▇▇▇▇▇ and (iv) in no event shall the Companies or their respective Representatives be obligated to provide (A) any access or information in violation of any Applicable Laws, (B) any information with respect to bids, the identity of any bidder, confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein or non-disclosure agreements, letters of intent, expressions of interest or other proposals received prior to the contrarydate hereof in connection with transactions comparable to those contemplated by this Agreement or any information or analysis relating to any such communications, Purchaser shall consult with Sellers (C) any information the disclosure of which would jeopardize any applicable privilege (including the attorney-client privilege) available to the Companies or their respective Affiliates relating to such information or (D) before the Closing, any information included in the Customer Database that contains sensitive information relating to the Companies’ or its Affiliates’ (including the Casino for periods prior to conducting any environmental investigations or examinations the Closing) pricing strategies, including data relating to the value of any naturebenefits, rewards, gifts, coupons, or other player reinvestment incentives provided or offered by the Companies’ or its Affiliates (including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyCasino for periods prior to the Closing) to the customer.
Appears in 2 contracts
Sources: Merger Agreement (Vici Properties Inc.), Merger Agreement (Penn National Gaming Inc)
Access to Information. (a) Sellers agree that6.5.1 Subject to Section 6.4, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examinationCompany shall, and each Member shall cause the Company to, cause its Representatives to afford the Representatives of Purchaser Buyer reasonable access during normal business hours to the officers, managers, employees, agents, properties, offices and other facilities of the Company and its Representatives shall use their reasonable best efforts books and records, and furnish Buyer with such financial, operating and other data and information with respect to not materially interfere with the business of Sellers and their SubsidiariesCompany as Buyer may reasonably request. Without limiting the generality of the foregoing, subject the Company shall, and each Member shall cause the Company to, cooperate with Buyer in the preparation, review and audit of financial statements and other financial information regarding the Company that may be required to Section 6.1(a), such investigation be included in the financial reports and examination other public disclosures of Buyer pursuant to Regulations S-X and S-K promulgated under the Securities Act and the Exchange Act in connection with the transactions contemplated hereby. Such cooperation shall include the execution and delivery of a customary representation letter to the accounting firm responsible for reviewing and auditing such financial statements. In exercising its rights hereunder, Buyer shall conduct itself so as not to unreasonably interfere in the conduct of the business of the Company prior to Closing. Buyer acknowledges and agrees that any contact by Buyer and/or its Representatives with officers, managers, employees, customers or agents of the Company hereunder shall be arranged and supervised by Representatives of the Company, unless the Company otherwise expressly consents with respect to any specific contact.
6.5.2 After the Closing and for a period of six (6) years, upon reasonable access written notice, Buyer shall furnish or cause to Sellers’ executive officers (and employees of Sellers be furnished to the Members and their respective Subsidiaries identified by such executive officers)Representatives reasonable access, offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each caseduring normal business hours, to such information and assistance relating to the confidentiality restrictions outlined Company as is necessary for the defense of any actions, suits or other proceedings. The applicable Member shall promptly reimburse Buyer and the Company for any reasonable out-of-pocket costs and expenses incurred by any of them in assisting such Member pursuant to this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property6.5.2.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Heidrick & Struggles International Inc)
Access to Information. (a) Sellers agree thatSubject to applicable Laws, from the date of this Agreement until the earlier of the Executory Contract Designation Deadline Closing, Seller will, and the termination of this Agreementwill cause its Subsidiaries to, Purchaser shall be entitled, through give Buyer and its Representatives or otherwise, to have reasonable access to (i) all of the executive officers Acquired FH Assets and Representatives FH Assets and assets of Sellers the Transferred FH Companies and their Closing Subsidiaries, Real Property, the properties Transferred FH Books and Records and to such personnel, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties of the Purchased Assets and Assumed Liabilities) of Sellers Transferred FH Companies and their Subsidiaries, including access Closing Subsidiaries and to systems, data, databases for benefit plan administrationfurnish such other information in respect of the operation of the FH Business as Buyer may reasonably request; provided howeverprovided, that no all requests for access pursuant to this Section 5.2 shall be made in writing and shall be directed to and coordinated with the Vice President, Investor Relations, Colfax Corporation, or such person or persons as he/she shall designate; provided, further, that any such access shall be conducted at a reasonable time, upon reasonable advance notice to Seller, and in such a manner as not to interfere unreasonably with the operation of any business conducted by any Transferred FH Company or its Closing Subsidiaries; provided, further, that any such access or information request shall not involve any Phase 2 environmental assessment or other invasive sampling, investigation or examination work of any kind. All such information and access shall be permitted subject to the terms and conditions of the confidentiality agreement dated May 8, 2017 between Buyer and Seller (the “Confidentiality Agreement”). Notwithstanding the foregoing, Seller and its Subsidiaries shall not be required to provide any such information (i) as and to the extent that it wouldrelates to the Excluded Businesses, in Sellers’ reasonable determinationthe Excluded Assets or the Retained Liabilities, require any Seller, any Subsidiary of any (ii) if the Seller or any of their respective Representatives its Subsidiaries believes in good faith that doing so presents a significant risk, based on advice of outside counsel of resulting in a loss of the ability to disclose information subject to attorney-client privilege successfully assert a claim of Privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any (iii) if Seller or any of their respective Representatives its Subsidiaries, on the one hand, and Buyer or any of its Subsidiaries, on the other hand, are bound adverse parties in a litigation (in which caseother than a litigation with respect to this Agreement) and such information is reasonably pertinent thereto; provided, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding that, in the notice provisions case of clause (ii) above, the parties hereto shall reasonably cooperate in Section 9.2 hereof, all seeking to find a way to allow disclosure of such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser information without resulting in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality a loss of the foregoing, subject ability to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees successfully assert a claim of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyPrivilege.
Appears in 2 contracts
Sources: Purchase Agreement (Circor International Inc), Purchase Agreement (Colfax CORP)
Access to Information. (a) Sellers agree thatUpon reasonable notice by Verizon, until NorthPoint shall, and shall cause its Subsidiaries, and its and their officers, directors, employees, auditors, counsel and agents to, afford the earlier officers, employees, auditors, counsel and agents of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have Verizon with reasonable access during normal business hours to the executive officers NorthPoint's and Representatives of Sellers and the properties its Subsidiaries' officers, employees, auditors, counsel agents, properties, offices and other facilitiesfacilities and to their respective books and records, businessesand shall furnish Verizon with financial, books, Contracts, personnel, records operating and operations (including the Purchased Assets other data and Assumed Liabilities) of Sellers and their Subsidiariesinformation as Verizon may reasonably request, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict connection with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialconfirmatory due diligence.
(b) Any investigation and examination contemplated by this Verizon agrees that all information received from NorthPoint pursuant to Section 6.1 7.4(a) hereof shall be subject deemed received pursuant to restrictions set forth in Section 6.24 the Nondisclosure Agreement and under applicable Law. Sellers Verizon shall cooperatecomply, and shall cause their its Subsidiaries and each of its and their respective Representatives officers, directors, employees, financial advisors and agents ("Party Representatives") to cooperatecomply, with Purchaser the provisions of the Nondisclosure Agreement with respect to such information and the provisions of the Nondisclosure Agreement are hereby incorporated herein by reference with the same effect as if fully set forth herein, provided that such information may be used for any purpose contemplated hereby.
(c) Upon reasonable notice by NorthPoint, Verizon shall afford, and shall cause its Subsidiaries and its Representatives and their officers, directors, employees, auditors, counsel and agents to afford, the officers, employees, auditors, counsel and agents of NorthPoint with reasonable access during normal business hours to Verizon's and its Subsidiaries' officers, employees, auditors, counsel agents, properties, offices and other facilities and to their respective books and records, but in each case only to the extent related to the Verizon DSL Business, and shall furnish NorthPoint with financial, operating and other data and information regarding the Verizon DSL Business as NorthPoint may reasonably request, including in connection with such investigation confirmatory due diligence.
(d) NorthPoint agrees that all information received from Verizon pursuant to Section 7.4(c) hereof shall be deemed received pursuant to the Nondisclosure Agreement and examinationNorthPoint shall comply, and shall cause its Subsidiaries and each of Purchaser its and its their Party Representatives shall use their reasonable best efforts to not materially interfere comply, with the business of Sellers and their Subsidiaries. Without limiting the generality provisions of the foregoingNondisclosure Agreement with respect to such information and the provisions of the Nondisclosure Agreement are hereby incorporated herein by reference with the same effect as if fully set forth herein, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to such information may be present at used for any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertypurpose contemplated hereby.
Appears in 2 contracts
Sources: Merger Agreement (Northpoint Communications Group Inc), Merger Agreement (Bell Atlantic Corp)
Access to Information. (a) Sellers agree that, From the date hereof until the earlier Closing, Holdings and the Companies shall (i) afford Parent and its Representatives full and free access to and the right to inspect all of the Executory Contract Designation Deadline Real Property, properties, assets, premises, books and records, Contracts and other documents and data related to the termination of this Agreement, Purchaser shall be entitled, through Holdings Entities; (ii) furnish Parent and its Representatives or otherwisewith such financial, to have reasonable access operating and other data and information related to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller Holdings Entities as Parent or any of their respective its Representatives may reasonably request; and (iii) instruct the Representatives of the Holdings Entities to cooperate with Parent in its investigation of the Holdings Entities. Without limiting the foregoing, Holdings and the Companies shall permit Parent and its Representatives to disclose information subject to attorneyconduct non-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to intrusive environmental due diligence on the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure Holdings Entities and the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designeeReal Property. If any material is withheld Any investigation pursuant to this Section 6.1(a)5.03 shall be conducted in such manner as not to interfere unreasonably with the conduct of the business of the Holdings Entities. No investigation by Parent or other information received by Parent shall operate as a waiver or otherwise affect any representation, Seller shall inform Purchaser warranty or agreement given or made by the Holdings Entities in writing as to the general nature of what is being withheld and the reason for withholding such materialthis Agreement.
(b) Any investigation The Member Representative shall hold in confidence all documents and examination contemplated by this Section 6.1 shall be subject information furnished to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives it in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1transactions contemplated hereby. Notwithstanding anything contained herein to the contrary, Purchaser following Closing, the Member Representative shall consult with Sellers prior be permitted to conducting any environmental investigations disclose information as required by Law or examinations of any nature, including Phase I to advisors and Phase II site assessments and any environmental sampling in respect representatives of the Transferred Real PropertyMember Representative and to Holdings and the Members, in each case who have a need to know such information, provided that such persons are subject to confidentiality obligations with respect thereto.
Appears in 2 contracts
Sources: Merger Agreement (Vireo Growth Inc.), Merger Agreement (Vireo Growth Inc.)
Access to Information. (a) Sellers agree thatSubject to the terms of the Confidentiality Agreement, from the date hereof until the earlier Closing, upon reasonable notice, Gentek Holdings and its Subsidiaries shall cause their respective officers, directors, employees, agents, representatives, accountants and counsel to, afford the officers, employees and authorized agents, representatives, accountants, counsel and financing sources of Purchaser reasonable access, during normal business hours, to the offices, properties, plants, other facilities, and books and records of or relating to the Business and to those officers, directors, employees, agents, representatives, accountants and counsel of Gentek Holdings and its Subsidiaries who have any knowledge relating to the Business; provided, however, that Purchaser and its officers, employees and authorized agents, representatives, accountants, counsel and financing sources shall not unreasonably interfere with the business and operations of Gentek Holdings and its Subsidiaries.
(b) For a period of six (6) years following the Closing Date, Purchaser shall, and shall cause Gentek Holdings and its Subsidiaries to, provide to any of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives Sellers or otherwise, to have Sellers' Representative reasonable access to the executive officers books and Representatives records of Sellers Gentek Holdings and its Subsidiaries, upon reasonable advance written notice during regular business hours, for any proper purpose relating to the properties and other facilities, businesses, books, Contracts, personnel, records and operations ownership of Shares (including the Purchased Assets purchase and Assumed Liabilities) sale of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted Shares pursuant to the extent that it wouldterms hereof but excluding, in Sellers’ reasonable determination, require any Sellerafter the Closing, any Subsidiary rights of indemnification or the obligations of any Seller party under this Agreement or any of their respective Representatives other document to disclose information subject to attorney-client privilege be executed pursuant hereto) by any such Sellers or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, Sellers' Representative prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives permit any such Sellers or Sellers' Representative to cooperatemake copies or extracts therefrom as may be reasonably necessary; provided, with Purchaser and its Representatives in connection with such investigation and examinationhowever, and each of Purchaser and its Representatives that neither Sellers nor Sellers' Representative, as the case may be, shall use their reasonable best efforts to not materially unreasonably interfere with the business and operations of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic Gentek Holdings or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyits Subsidiaries.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Associated Materials Inc), Stock Purchase Agreement (AMH Holdings, Inc.)
Access to Information. (a) The Sellers agree that, from the date hereof until the earlier of the Executory Contract Designation Deadline Closing Date and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwiseRepresentatives, to have make such investigation of the properties, records, businesses and operations of the Sellers and the Business, including for purposes of Purchaser’s review of the Pre-Closing Statement, and such examination of the books, records and financial condition of the Sellers and the Business as it reasonably requests in advance in writing, and that Sellers will provide reasonable access to the executive officers its respective officers, employees, consultants and Representatives agents in connection with such requests, and to make extracts and copies of Sellers such books and the properties records at Purchaser’s sole cost and other facilitiesexpense; provided, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no (a) such investigation access does not unreasonably interfere with the operation of the Sellers or examination the Businesses and shall be permitted subject to the extent that it would, in Sellers’ reasonable determinationsecurity measures and insurance requirements, require which shall be provided to Purchaser and its Representatives in advance and in writing, (b) Purchaser and its authorized agents and Representatives shall not contact or otherwise communicate with the employees, customers or suppliers of the Sellers or the Business in connection with the transactions contemplated by this Agreement unless, in each instance, approved in writing in advance by the Sellers, (c) under no circumstances shall Purchaser be entitled to conduct any Sellersampling, any Subsidiary testing or other surface or subsurface investigation of any Seller environmental media or any other building material without consent of their respective Representatives Biolase, which shall not be unreasonably withheld or delayed, and (d) nothing herein shall require the Sellers to disclose furnish to Purchaser or provide Purchaser with access to information that legal counsel for Sellers reasonably concludes is restricted by applicable Contract or Law except in strict compliance with the applicable Contract or Law, or that may be subject to attorney-client privilege privilege. No investigation by Purchaser prior to or in conflict with any confidentiality agreement to which any Seller, any Subsidiary after the date of any Seller this Agreement shall diminish or obviate any of their respective Representatives are bound (the representations, warranties, covenants or agreements of the Sellers contained in which casethis Agreement or the Ancillary Documents. The Sellers shall use reasonable efforts to promptly deliver to Purchaser such copies of all pleadings, motions, notices, statements, schedules, applications, reports and other papers filed by the Sellers in the Bankruptcy Cases related, in material part, to the proposed sale of the Purchased Assets and otherwise cooperate with Purchaser, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or reasonably necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality Purchaser’s preparation for or participation in any part of the foregoingBankruptcy Cases in which Purchaser’s participation is necessary, subject required or reasonably appropriate. The Sellers shall promptly deliver to Section 6.1(a)Purchaser all pleadings, such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers)motions, officesnotices, properties statements, schedules, applications, reports and other facilities, and books, Contracts and records (including papers filed in any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information Action as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sonendo, Inc.), Asset Purchase Agreement (Biolase, Inc)
Access to Information. (a) Sellers agree that, From the date hereof until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a)upon reasonable notice, Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries and each of their respective Representatives to cooperatethe Target Companies to, with Purchaser and cause its Representatives in connection with such investigation and examinationofficers, directors, and each of Purchaser employees, and its Representatives shall use their its commercially reasonable best efforts to not materially interfere with cause its agents, representatives, accountants and counsel to: (a) afford the business officers, employees, agents, accountants, counsel and representatives of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, Buyer who are subject to Section 6.1(a)an appropriate confidentiality agreement reasonable access, such investigation and examination shall include reasonable access during normal business hours, to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), the offices, properties and properties, plants, other facilities, books and books, Contracts Records of the Target Companies and records (including any document retention policies of Sellersb) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives the officers, employees, agents, accountants, counsel and representatives of Buyer who are subject to an appropriate confidentiality agreement such additional financial and operating data and other information regarding the assets, properties, Liabilities and goodwill of the Target Companies (or legible copies thereof) as Purchaser Buyer may from time to time reasonably request, subject, in each caseor as may be reasonably necessary, to facilitate the confidentiality restrictions outlined in transactions contemplated by this Section 6.1. Notwithstanding anything contained herein Agreement, or for the purpose of preparing for the operation of the business of the Target Companies following the Closing, or otherwise for the purpose of preparing for Buyer’s post-Closing relationship with Seller and the Target Companies pursuant to this Agreement and the contraryAncillary Agreements; provided, Purchaser that (i) such investigation shall consult with Sellers prior only be upon reasonable notice and shall be at Buyer’s sole cost and expense; and (ii) Buyer and its representatives shall not be permitted to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and perform any environmental sampling in respect of the Transferred at any Owned Real Property or Leased Real Property, including sampling of soil, groundwater, surface water, building materials, or air or wastewater emissions. All information obtained by Buyer and its representatives shall be subject to the Confidentiality Agreement. All requests for access pursuant to this Section 6.03(a) shall be made to Seller.
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (Advanced Micro Devices Inc)
Access to Information. (a) Sellers agree that, From the date hereof until the earlier of the Executory Contract Designation Deadline Closing and the termination of this AgreementAgreement pursuant to Article VIII and subject to applicable Law, upon reasonable advance notice from the Purchaser, the Sellers shall (i) provide to the Purchaser shall be entitled(and the Purchaser’s officers, through its Representatives or otherwisedirectors, to have employees, accountants, consultants, financial and legal advisors, agents, financing sources (including potential sources) and other authorized representatives of the Purchaser and such other parties, collectively, “Representatives”) reasonable access during normal business hours to the executive officers offices, properties, books and Representatives records of Sellers and the properties and other facilitiesany Group Company, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilitiesii) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted furnish to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional existing financial and operating data and other existing information as such persons may reasonably request in writing, and (iii) instruct its and its Subsidiaries’ employees, legal counsel, financial advisors, auditors and other Representatives to reasonably cooperate with the Purchaser may and its Representatives in their investigation. Notwithstanding the foregoing, any such investigation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Company or its Subsidiaries or otherwise result in any significant interference with the timely discharge by the employees of the Company or its Subsidiaries of their duties.
(b) From the date hereof until the earlier of the Closing and termination of this Agreement pursuant to Article VIII and subject to applicable Law, upon reasonable advance notice from time to time reasonably requestthe Sellers, subject, in each case, the Purchaser shall (i) provide to the confidentiality restrictions outlined Sellers (and the Sellers’ Representatives) reasonable access during normal business hours to the offices, properties, books and records of any Purchaser Group Company, (ii) furnish to the Sellers and their Representatives such existing financial and operating data and other existing information as such persons may reasonably request in writing, and (iii) instruct its and its Subsidiaries’ employees, legal counsel, financial advisors, auditors and other Representatives to reasonably cooperate with the Sellers and their Representatives in their investigation. Notwithstanding the foregoing, any such investigation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Purchaser or its Subsidiaries or otherwise result in any significant interference with the timely discharge by the employees of the Purchaser or its Subsidiaries of their duties.
(c) Notwithstanding anything to the contrary in Section 6.01(a) and Section 6.01(b), nothing in this Section 6.1. Notwithstanding anything contained herein Agreement shall require the Sellers (or the Purchaser or any of its Subsidiaries) to provide the Purchaser (or the Sellers) or any of its (or their) Representatives with access to any books, records, documents or other information to the contraryextent that (i) such books, records, documents or other information is subject to any confidentiality agreement with a Third Party (provided that, at the request of the Purchaser (or the Sellers), the Sellers (or the Purchaser) shall consult with Sellers prior use their (or its) commercially reasonable efforts to conducting obtain a waiver from such Third Party), (ii) the disclosure of such books, records, documents or other information would result in the loss of attorney-client privilege which could not be reasonably remedied by use of common interest agreements or other methods to maintain such privilege, or (iii) the disclosure of such books, records, documents or other information is prohibited by applicable Law.
(d) All information provided or made available pursuant to this Section 6.01 to the Purchaser or its Representatives shall be subject to Section 6.02.
(e) No investigation pursuant to this Section 6.01 shall affect any environmental investigations representation or examinations warranty in this Agreement of any nature, including Phase I and Phase II site assessments and Party or any environmental sampling in respect condition to the obligations of the Transferred Real PropertyParties.
Appears in 2 contracts
Sources: Share Purchase Agreement (Renren Inc.), Share Purchase Agreement (Kaixin Auto Holdings)
Access to Information. (a) Sellers agree thatEach Seller shall give Buyer and its counsel, until the earlier of the Executory Contract Designation Deadline accountants, engineers, and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have other authorized representatives reasonable access to the executive officers Assets and Representatives of Sellers to all other books, records, and documents relating to the Shares and the properties Stations for the purpose of audit and other facilitiesinspection, businesses, books, Contracts, personnel, records and will furnish or cause to be furnished to Buyer or its authorized representatives all information with respect to the affairs and business of the Stations that Buyer may reasonably request (including any financial reports and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted reports produced with respect to the extent that it wouldaffairs and business of VVI Spokane, in Sellers’ reasonable determinationVVI Tallahassee and the Stations, require any Seller, any Subsidiary a list of any Seller or any all employees of the Stations and a description of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requestedbase compensation); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a)Sellers shall give Buyer and its counsel, such investigation accountants, and examination shall include other authorized representatives reasonable access to Sellers’ executive officers (' financial records relating to the operations of the Stations and employees the Stations' employees, counsel, accountants, and other representatives for the purpose of preparing and auditing such financial statements as Buyer determines, in its reasonable judgment, are required or advisable to comply with federal or state securities laws and the rules and regulations of securities markets as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Sellers agree to provide financial statements concerning the operations of the Stations, reviewed by Sellers' accountants, containing reasonably requested customary representations; provided, however, that the parties hereto agree that Buyer shall have no right under any circumstance to delay the Closing or terminate this Agreement on account of the information contained in any such financial statement or the inability of Sellers or their accountants in good faith to make any representation requested by Buyer. The preparation and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including auditing of any document retention policies of Sellers) and access financial statements pursuant to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser 6.8(b) shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I be at Buyer's sole cost and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyexpense.
Appears in 2 contracts
Sources: Asset and Stock Purchase Agreement (Quantum Direct Corp), Asset and Stock Purchase Agreement (Paxson Communications Corp)
Access to Information. (a) Sellers agree thatSubject to Section 5.03(b), from the date of this Agreement until the earlier of the Executory Contract Designation Deadline Closing, upon reasonable notice and the termination of this Agreementduring normal business hours, and subject to Applicable Law, Seller shall and shall cause each Acquired Company to (i) give Purchaser shall be entitled, through and its Representatives or otherwise, to have reasonable access to the executive officers offices, properties, books and Representatives records of Sellers and the properties and other facilitiesAcquired Companies, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilitiesii) of Sellers and their Subsidiaries, including access furnish to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information relating to the Acquired Companies as Purchaser such Persons may from time to time reasonably request, subjectin the same form provided to Purchaser during its due diligence review, provided, that Seller need not provide financial and operating data any earlier than such information would otherwise be available in the ordinary course of business consistent with past practice, and (iii) instruct the Representatives of the Acquired Companies to cooperate with Purchaser in its investigation of the Acquired Companies. Any investigation pursuant to this Section 5.03(a) shall be conducted in such manner as not to be disruptive or interfere unreasonably with the conduct of the business of the Acquired Companies. Prior to the Closing, with the prior written consent of Seller, which shall not be unreasonably withheld, conditioned or delayed, (A) Purchaser may contact any Suppliers to, or customers of, the Acquired Companies, and (B) Purchaser shall have the right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies. All information provided to Purchaser and its Affiliates and Representatives pursuant to this Agreement shall be considered confidential.
(b) Seller may (i) withhold from Purchaser any Contracts entered into after the date hereof and which Seller provides notice to Purchaser of the fact that such Contracts cannot be provided to Purchaser under Applicable Law, or (ii) prohibit any investigation or examination under Section 5.03(a), where, in each casethe case of clause (ii), Seller has determined, in its reasonable judgment and on the advice of outside legal counsel, that doing so would (A) violate Applicable Law, (B) breach a Contract or obligation of confidentiality owing to a third party, or (C) constitute a waiver of attorney-client privilege, it is agreed that Seller shall give notice to Purchaser of the confidentiality restrictions outlined fact that it is withholding such Contracts or information, and thereafter Seller and Purchaser shall, if permissible, reasonably cooperate (including by entering into a joint defense or similar agreement) to cause such information or documents to be provided in this Section 6.1a manner that would not reasonably be expected to waive the applicable privilege or protection or violate the applicable restriction. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior not have access to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect personnel records of the Transferred Real PropertyAcquired Companies relating to individual performance or evaluation records, medical histories or other information, the disclosure of which would result in the violation of Applicable Law.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Esports Entertainment Group, Inc.), Stock Purchase Agreement (Esports Entertainment Group, Inc.)
Access to Information. (a) Sellers agree that, From the date of this Agreement until the earlier of the Executory Contract Designation Deadline Closing Date, upon reasonable prior notice, and the termination of this Agreement, Purchaser shall except as determined in good faith to be entitled, through its Representatives or otherwise, appropriate to have reasonable access ensure compliance with any applicable Laws and subject to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations any applicable privileges (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any privilege) and contractual confidentiality agreement to which any Sellerobligations, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateuse, and shall cause their Subsidiaries and Affiliates to use, reasonable best efforts to cause each of their respective Representatives to cooperateto, with Purchaser and its (i) afford the Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingBuyer reasonable access, subject during normal business hours, to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), the offices, properties and other facilitiesproperties, and books, Contracts books and records of the Business and (including any document retention policies of Sellersii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s the Representatives of the Buyer such additional financial and operating data and other information regarding the Business or the Transferred Assets as Purchaser the Buyer may from time to time reasonably request for the purpose of preparing to operate the Business following the Closing; provided, however, that such investigation shall not unreasonably interfere with any of the businesses or operations of the Sellers or any of their Affiliates; and provided, further, that the auditors and accountants of the Sellers or any of their Affiliates shall not be obliged to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by the Sellers, the Buyer shall enter into a customary joint defense agreement with the Sellers and such of their Affiliates as they request with respect to any information to be provided to the Buyer or its Representatives pursuant to this Section 5.02(a). Without limiting the foregoing, prior to the Closing, the Buyer shall not conduct, without the prior written consent of the Sellers, any environmental investigation at any property owned or leased by any Seller in the operation of the Business, and in no event may any such environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any such properties. Notwithstanding anything to the contrary contained herein, prior to the Closing, without the prior consent of the Sellers, which shall not be unreasonably withheld (and which must be in writing only for contacts with suppliers or customers), neither the Buyer nor any of its Representatives shall contact any employees of, suppliers to, or customers of any Seller or its Affiliates, except for contacts by the Buyer in the ordinary course of business consistent with past practices; provided that if a Seller does provide the Buyer such prior consent, the Buyer and any of its Representatives may continue to contact such employee, supplier or customer (x) unless such consent explicitly states otherwise or (y) until such Seller informs the Buyer or any of its Representatives that they may no longer contact such employee, supplier or customer.
(b) In addition to the provisions of Section 5.03, from and after the Closing Date, in connection with any reasonable business purpose, including the preparation of Tax Returns, addressing claims related to Excluded Liabilities, preparing financial statements, U.S. Securities and Exchange Commission reporting obligations and the determination of any matter relating to the rights or obligations of the Sellers or any of their Affiliates under this Agreement, the Business prior to the Closing or the Companion Agreements, upon reasonable prior notice and at the Sellers’ sole cost and expense, and except as determined in good faith to be appropriate to ensure compliance with any applicable Laws and subject to any applicable privileges (including the attorney-client privilege) and contractual confidentiality obligations, the Buyer shall and shall cause its Affiliates and Representatives to: (i) afford the Representatives of the Sellers and their Affiliates reasonable access (including the right to make, at the Sellers’ expense, photocopies), during normal business hours, to the offices, properties, books and records of the Buyer and its Affiliates and Representatives in respect of the Transferred Assets; (ii) furnish to the Representatives of the Sellers and their Affiliates such additional financial and other information regarding the Transferred Assets as is in the Buyer’s possession and control as the Sellers or their Representatives may from time to time reasonably request, subject, in each case, ; and (iii) make available to the confidentiality restrictions outlined Representatives of the Sellers and their Affiliates the employees of the Buyer and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence is necessary to assist the Sellers in connection with the Sellers’ inquiries for any of the purposes referred to above, including the presence of such persons as witnesses in hearings or trials for such purposes; provided, however, that such investigation shall not unreasonably interfere with the business or operations of the Buyer or any of its Affiliates; and provided, further, that the auditors and accountants of the Buyer or its Affiliates shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by the Buyer, the Sellers shall enter into a customary joint defense agreement with the Buyer and its Affiliates with respect to any information to be provided to the Sellers pursuant to this Section 5.02(b). No information, books, records or other documents accessed by the Sellers or their respective Affiliates or Representatives pursuant to this Section 5.02(b) shall be used for any purposes other than as expressly permitted by this Section 5.02(b).
(c) Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein Agreement to the contrary, Purchaser the Sellers shall consult with Sellers not be required, prior to conducting the Closing, to disclose, or cause the disclosure of, to the Buyer or its Affiliates or Representatives (or provide access to any environmental investigations offices, properties, books or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect records of the Transferred Real PropertySellers or any of their Affiliates that could result in the disclosure to such persons or others of) any confidential information relating to trade secrets, proprietary know-how, processes or patent, trademark, trade name, service ▇▇▇▇ or copyright applications or relating to any product development or pricing and marketing plans to the extent counsel to the Sellers, after consultation with counsel to the Buyer, advises that doing so would likely be a violation of applicable antitrust Laws, nor shall the Sellers be required to permit or cause others to permit the Buyer or its Affiliates or Representatives to have access to or to copy or remove from the offices or properties of the Sellers or any of their Affiliates any documents, drawings or other materials that might reveal any such confidential information.
(d) During the period from the date of this Agreement through the earlier of the Closing Date or the termination of this Agreement pursuant to Article VIII, the Sellers shall periodically deliver to the Buyer, at intervals and in a form consistent with past practice between the Sellers and the Buyer during the negotiation of the transactions contemplated by this Agreement and which will be prepared consistent with the Agreed Financial Methodology, the following financial information related to the Business (which shall be provided on an aggregate basis with respect to the entire Territory and on an individual basis with respect to each distribution center and/or territory within the Territory):
(i) at the end of each month after the date hereof, monthly financial information, which shall include data with respect to volume (on a brand basis), revenue, cost of goods sold at standard, and gross margin at standard, in each case solely related to the Business; and
(ii) at the end of each fiscal quarter after the date hereof, all of the data described in Section 5.02(d)(i) above together with direct operating expense data, in each case solely related to the Business for the quarter then ended (the “Interim Quarterly Data”). The Sellers shall deliver to the Buyer the data contemplated by this Section 5.02(d) promptly upon completion, but in any event no later than, (x) fifteen (15) Business Days after the end of the applicable month with respect to deliveries made pursuant to Section 5.02(d)(i), and (y) one hundred twenty (120) days after the end of the applicable fiscal quarter with respect to deliveries made pursuant to Section 5.02(d)(ii).
(e) The Sellers will, and will cause their Affiliates to, cooperate with the Buyer’s completion of its due diligence by providing to the Buyer certain identified information described in Section 5.02(e) of the Disclosure Schedule. With respect to the continuing diligence of the Buyer under this Agreement that takes place between the signing of this Agreement and the Closing, the parties agree to deal with one another in good faith consistent with historical practices for addressing economic disputes.
(f) If any Seller enters into any Pre-Closing Material Contracts between the date hereof and the Closing Date, the Sellers will provide the Buyer as promptly as reasonably practicable prior to the Closing with true, correct and complete copies of all such contracts or agreements. If any Seller enters into any Shared Contracts or Specified Non-Transferring Contracts between the date hereof and the Closing Date, the Sellers will provide the Buyer as promptly as reasonably practicable with true, correct and complete copies of all portions of such Shared Contracts or Specified Non-Transferring Contracts, as applicable, that relate to the Business (together with such other portions thereof as are necessary to comprehend the terms thereof that apply to the Business).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Coca Cola Co), Asset Purchase Agreement (Coca Cola Co)
Access to Information. Seller will, at reasonable times and upon reasonable notice: (ai) Sellers agree thatgive Buyer and its representatives reasonable access, until the earlier of the Executory Contract Designation Deadline during normal business hours and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwiseupon reasonable notice, to have reasonable access Seller's managerial personnel and to all books, records, plans, equipment, offices and other facilities and properties constituting the assets subject to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, Option in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as order to permit the access requested)Buyer to make such reasonable Inspections thereof as Buyer may request; provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(bii) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection furnish Buyer with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the assets subject to the Option as Purchaser Buyer may from time to time reasonably request, subjectand permit Buyer to make such reasonable Inspections thereof as Buyer may request; (iii) furnish Buyer a copy of each material report, in each case, schedule or other document filed by Seller or any of its Affiliates with respect to the confidentiality restrictions outlined assets subject to the Option, this Agreement and the transactions contemplated hereby with any state or federal court, administrative agency, commission or other Governmental Authority, including, without limitation, the SEC, FERC, New York Public Service Commission or New York Independent System Operator; and (iv) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the representations and warranties of Seller contained in this Section 6.1. Notwithstanding anything contained herein Agreement; provided, however, that (x) any such Inspections and investigations shall be conducted in such a manner consistent with Seller's safety requirements and so as not to interfere unreasonably with the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect operation of the Transferred Real Propertysubject assets, (y) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (z) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply.
Appears in 2 contracts
Sources: Option and Purchase and Sale Agreement (Keyspan Corp), Second Option and Purchase and Sale Agreement (Keyspan Corp)
Access to Information. From the date hereof until the Closing, Seller shall (a) Sellers agree that, until afford Buyer and its Representatives reasonable access to and the earlier right to inspect all of the Executory Contract Designation Deadline properties, assets, premises, Books and Records, Assigned Contracts and other documents and data related to the termination Business; (b) furnish Buyer and its Representatives with such financial, operating and other data and information related to the Business as Buyer or any of its Representatives may reasonably request; and (c) instruct the Representatives of Seller to cooperate with Buyer in its investigation of the Business; provided, however, that any such investigation shall be conducted during normal business hours upon reasonable advance notice to Seller, under the supervision of Seller's personnel and in such a manner as not to interfere with the conduct of the Business or any other businesses of Seller. All requests by Buyer for access pursuant to this Section 6.03 shall be submitted or directed exclusively to Seller or Owners, or such other individuals as Seller may designate in writing from time to time. Notwithstanding anything to the contrary in this Agreement, Seller shall not be required to disclose any information to Buyer if such disclosure would, in Seller's sole discretion: (x) cause significant competitive harm to Seller and its businesses, including the Business, if the transactions contemplated by this Agreement are not consummated; (y) jeopardize any attorney-client or other privilege; or (z) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior . Prior to the Closing, to the Chief Financial Officer of Parent or his designeeand in concert with Seller, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, Buyer shall have the right to be present at contact and discuss the operation of the Business with Seller's ten (10) largest customers by volume, five (5) largest suppliers by volume and all major distributors. Buyer shall, and shall cause its Representatives to, abide by the terms of the Confidentiality Agreement with respect to any meeting between any such accountant and Purchaser access or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish information provided pursuant to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property6.03.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Concierge Technologies Inc), Asset Purchase Agreement (Concierge Technologies Inc)
Access to Information. (a) Sellers agree thatAfter Closing, until the earlier of the Executory Contract Designation Deadline Buyer will, and the termination of this Agreement, Purchaser shall be entitled, through will cause its Representatives or otherwiseto, afford to have Seller, including its Representatives, reasonable access to all books, records, files and documents related to the executive officers Business in order to permit Seller to prepare and Representatives of Sellers file its Tax Returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in any other investigation and defend any Proceedings relating to or involving Seller, the Subsidiary or the Business for which Seller may be responsible, to discharge its obligations under this Agreement and the properties other Related Documents to which it is a party and for other facilitiesreasonable purposes and will afford Seller reasonable assistance in connection therewith. Buyer will cause such records to be maintained for not less than seven years from the Closing Date and will not dispose of such records without first offering in writing to deliver them to Seller; provided, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no in the event that Buyer transfers all or a portion of the Business to any third party during such investigation period, Buyer may transfer to such third party all or examination a portion of the books, records, files and documents related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.2(b). In addition, on and after the Closing Date, at Seller’s request, Buyer shall be permitted make available to the extent that it wouldSeller and its Affiliates, in Sellers’ reasonable determinationemployees, require any Sellerrepresentatives and agents, any Subsidiary those employees of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent Buyer requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with any Proceeding, including to provide testimony, to be deposed, to act as witnesses and to assist counsel; provided, however, that (i) such investigation and examination, and each of Purchaser and its Representatives access to such employees shall use their reasonable best efforts to not materially unreasonably interfere with the business of Sellers and their Subsidiaries. Without limiting the generality normal conduct of the foregoing, subject operations of Buyer and (ii) Seller shall reimburse Buyer for the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertySeller.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Ugi Corp /Pa/), Purchase and Sale Agreement (Southern Union Co)
Access to Information. Upon reasonable request by SJNB, GBB shall --------------------- (i) make its Chief Executive Officer, Chief Administrative Officer/Chief Financial Officer, Chief Credit Officer and Controller available to discuss with SJNB and its representatives GBB's operations; and (ii) shall provide SJNB with written information which is (a) Sellers agree that, until similar to the earlier of the Executory Contract Designation Deadline and the termination of written information that SJNB reviewed in connection with this Agreement, Purchaser and (b) related to GBB's business condition, operations and prospects on a consolidated basis. No examination or review conducted under this section shall be entitled, through its Representatives constitute a waiver or otherwise, relinquishment on the part of SJNB of the right to have reasonable access to rely upon the executive officers representations and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administrationwarranties made by GBB herein; provided howeverprovided, that no such investigation SJNB shall disclose to GBB any fact or examination shall be permitted circumstance it may discover which SJNB believes renders any representation or warranty made by GBB hereunder incorrect in any respect. SJNB covenants and agrees that it and its representatives, counsel, accountants, agents and employees will hold in strict confidence all documents and information concerning GBB so obtained (except to the extent that it would, such documents or information are a matter of public record or require disclosure in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller the Joint Proxy Statement and Prospectus or any of their respective Representatives the public information of any applications required to disclose information subject to attorney-client privilege or in conflict be filed with any confidentiality agreement Governmental Entity to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to obtain the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be approvals and consents required to avoid effect the transactions contemplated hereby), and if the transactions contemplated herein are not consummated, such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, confidence shall be maintained and all such requests for access to the executive officers of Sellers documents shall be directed, prior returned to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialGBB.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Merger Agreement (Greater Bay Bancorp), Merger Agreement (SJNB Financial Corp)
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledthe Sellers will, through its during ordinary business hours and upon reasonable notice (i) give the Buyer and the Buyer Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties all books, records, plants, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting the Purchased Assets to which the Buyer is not denied access by law; (ii) permit the Buyer to make such reasonable inspections thereof as the Buyer may reasonably request; (iii) furnish the Buyer with such financial and Assumed Liabilitiesoperating data and other information with respect to the Purchased Assets as the Buyer may from time to time reasonably request; (iv) furnish the Buyer a copy of Sellers and their Subsidiarieseach material report, including access schedule or other document filed or received by them with respect to systemsthe Purchased Assets with the SEC, dataMDPU, databases for benefit plan administrationRIPUC, NHPUC, VTPSB, NRC or FERC; provided provided, however, that no (A) any such investigation or examination shall be permitted conducted in such a manner as not to interfere unreasonably with the extent that it wouldoperation of the Purchased Assets, in Sellers’ reasonable determination, require (B) the Sellers shall not be required to take any Seller, any Subsidiary action which would constitute a waiver of any Seller or any of their respective Representatives to disclose information subject to the attorney-client privilege or in conflict and (C) the Sellers need not supply the Buyer with any confidentiality agreement information which the Sellers are under a legal obligation not to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (supply. Notwithstanding anything in which case, this Section 7.2 to the extent requested by Purchasercontrary, (i) the Sellers will use reasonable best efforts only furnish or provide such access to seek an amendment Transferring Employee Records and personnel and medical records as is required by law, legal process or appropriate waiversubpoena and (ii) the Buyer shall not have the right to perform or conduct any environmental sampling or testing at, in, on, or necessary consents, as may be required to avoid such conflict, or restructure underneath the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialPurchased Assets.
(b) Any investigation The Buyer and examination contemplated Sellers acknowledge that Buyer is a Representative of U.S. Generating Company under the terms of the Confidentiality Agreement. All information furnished to or obtained by the Buyer, U.S. Generating Company and the Buyer Representatives pursuant to this Section 6.1 7.2 shall be subject to restrictions set forth the provisions of the Confidentiality Agreement and shall be treated as "Proprietary Information" (as defined in the Confidentiality Agreement).
(c) For a period of ten years after the Closing Date, each party and their representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records or other personnel and medical records required by law, legal process or subpoena, in the possession of the other party or parties to the extent that such access may reasonably be required by such party in connection with the Assumed Obligations or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the party or parties in possession of such books and records upon receipt of reasonable advance notice and during normal business hours. The party or parties exercising this right of access shall be solely responsible for any costs or expenses incurred by it or them pursuant to this Section 6.24 7.2(c). If the party or parties in possession of such books and under applicable Lawrecords shall desire to dispose of any such books and records upon or prior to the expiration of such ten-year period, such party or parties shall, prior to such disposition, give the other party or parties a reasonable opportunity at such other party's or parties' expense, to segregate and remove such books and records as such other party or parties may select.
(d) The Sellers agree to use best efforts to cause ▇▇▇▇ not to release any Person (other than the Buyer) from any confidentiality agreement now existing with respect to the Purchased Assets, or waive or amend any provision thereof.
(e) Notwithstanding the terms of the Confidentiality Agreement and Section 7.2(b) above, the parties agree that prior to the Closing the Buyer may reveal or disclose Proprietary Information to any other Persons in connection with financing, and risk management if reasonably necessary, of or with respect to the Purchased Assets, and to such Persons with whom the Buyer expects it may have business dealings regarding the Purchased Assets from and after the Closing Date, and, to the extent that Sellers consent, which consent shall not be unreasonably withheld, existing and potential customers and suppliers. The parties further agree that clause (c) of the first sentence of the second paragraph of the Confidentiality Agreement is terminated, and of no further force or effect.
(f) Except as required by law, unless otherwise agreed to in writing by the Buyer, for a period commencing on the Closing Date and terminating three years after such date the Sellers shall cooperatekeep (i) all Proprietary Information confidential and not disclose or reveal any Proprietary Information to any Person other than "Sellers' Representatives" (as defined below) who are actively and directly participating in the transactions contemplated hereby or who otherwise need to know the Proprietary Information for such purpose and to cause those Persons to observe the terms of this Section 7.2(f) and (ii) not to use Proprietary Information for any purpose other than consistent with the terms of this Agreement. The Sellers shall continue to hold all Proprietary Information according to the same internal security procedures and with the same degree of care regarding its secrecy and confidentiality as currently applicable thereto. The Sellers shall notify the Buyer of any unauthorized disclosure to third parties that it discovers, and shall cause their Subsidiaries and each endeavor to prevent any further such disclosures. The Sellers shall be responsible for any breach of their respective Representatives the terms of this Section 7.2(f) by the Sellers or the Sellers' Representatives. After the Closing Date, in the event that the Sellers are requested pursuant to, or required by, applicable law or regulation or by legal process to cooperatedisclose any Proprietary Information, or any other information concerning the Purchased Assets, or the transactions contemplated hereby, the Sellers shall provide the Buyer with prompt notice of such request or requirement in order to enable the Buyer to seek an appropriate protective order or other remedy, to consult with the Sellers with respect to taking steps to resist or narrow the scope of such request or legal process, or to waive compliance, in whole or in part, with Purchaser and its Representatives in connection the terms of this Section 7.2(f). The Sellers agree not to oppose any action by the Buyer to obtain a protective order or other appropriate remedy after the Closing Date. In the event that no such protective order or other remedy is obtained, or that the Buyer waives compliance with the terms of this Section 7.2(f), the Sellers shall furnish only that portion of the Proprietary Information which the Sellers are advised by counsel is legally required. In any such investigation and examination, and each of Purchaser and its Representatives event the Sellers shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided ensure that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data all Proprietary Information and other information as Purchaser may from time that is so disclosed will be accorded confidential treatment.
(g) The parties agree that the last sentence of the third paragraph of the Confidentiality Agreement shall not apply with respect to time reasonably requestProprietary Information that is included in the Purchased Assets.
(h) The parties agree that the Confidentiality Agreement will terminate, subjectwithout further act or evidence by the parties, in each case, upon consummation of the Closing.
(i) The Sellers shall use best efforts to cause ▇▇▇▇ to execute appropriate written evidence of its agreement to the confidentiality restrictions outlined in terms of this Section 6.1. Notwithstanding anything contained herein to 7.2 insofar as the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations Confidentiality Agreement is amended or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertysuperseded hereby.
Appears in 2 contracts
Sources: Asset Purchase Agreement (New England Electric System), Asset Purchase Agreement (Pg&e Corp)
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledSellers will, through at reasonable times and upon reasonable notice: (i) give Buyer and its Representatives or otherwise, to have reasonable access to the executive officers its managerial personnel and Representatives of Sellers and the properties to all books, records, plans, equipment, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting the Purchased Assets and Assumed LiabilitiesAssets; (ii) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection furnish Buyer with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the Purchased Assets as Purchaser Buyer may from time to time reasonably request, subjectand permit Buyer to make such reasonable Inspections thereof as Buyer may request; (iii) furnish Buyer at its request a copy of each material report, in each case, schedule or other document filed by Sellers or any of their Affiliates with respect to the confidentiality restrictions outlined Purchased Assets with the SEC, FERC, NYPSC, NYDEC, PaPUC, PaDEP or any other Governmental Authority; and (iv) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the representations and warranties of Sellers contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Sellers shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (C) Sellers need not supply Buyer with any information which Sellers are under a legal or contractual obligation not to supply. Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein 6.2 to the contrary, Purchaser Sellers will only furnish or provide such access to Transferring Employee Records and will not furnish or provide access to other employee personnel records or medical information unless required by law or specifically authorized by the affected employee and Buyer shall consult with Sellers prior not have the right to conducting any environmental investigations perform or examinations of any nature, including Phase I and Phase II site assessments and conduct any environmental sampling in respect or testing at, in, on, or underneath the Purchased Assets.
(b) Each Party shall, and shall use its best efforts to cause its Representatives to, (i) keep all Proprietary Information of the Transferred Real Propertyother Party confidential and not to disclose or reveal any such Proprietary Information to any person other than such Party's Representatives and (ii) not use such Proprietary Information other than in connection with the consummation of the transactions contemplated hereby. After the Closing Date, any Proprietary Information to the extent related to the Purchased Assets shall no longer be subject to the restrictions set forth herein. The obligations of the Parties under this Section 6.2(b) shall be in full force and effect for three (3) years from the date hereof and will survive the termination of this Agreement, the discharge of all other obligations owed by the Parties to each other and the closing of the transactions contemplated by this Agreement.
(c) For a period of seven (7) years after the Closing Date (or such longer period as may be required by applicable law), each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance written notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period (or any such longer period), such Party shall, prior to such disposition, give the other Party a reasonable opportunity at such other Party's reasonable expense, to segregate and remove such books and records as such other Party may select.
(d) Notwithstanding the terms of Section 6.2(b) above, the Parties agree that prior to the Closing Buyer may reveal or disclose Proprietary Information to any other Persons in connection with Buyer's financing of its purchase of the Purchased Assets or any equity participation in Buyer's purchase of the Purchased Assets (provided that such Persons agree in writing to maintain the confidentiality of the Proprietary Information in accordance with this Agreement).
(e) Upon the other Party's prior written approval (which will not be unreasonably withheld), either Party may provide Proprietary Information of the other Party to the NYPSC, the PaPUC, the SEC, the FERC or any other Governmental Authority with jurisdiction or any stock exchange, as may be necessary to obtain Sellers' Required Regulatory Approvals, or Buyer Required Regulatory Approvals, respectively, or to comply generally with any relevant law or regulation. The disclosing Party will seek confidential treatment for the Proprietary Information provided to any Governmental Authority and the disclosing Party will notify the other Party as far in advance as is practicable of its intention to release to any Governmental Authority any Proprietary Information.
(f) Except as specifically provided herein or in the Confidentiality Agreement, nothing in this Section shall impair or modify any of the rights or obligations of Buyer or its Affiliates under the Confidentiality Agreement, all of which remain in effect until termination of such agreement in accordance with its terms.
(g) Except as may be permitted in the Confidentiality Agreement, Buyer agrees that, prior to the Closing Date, it will not contact any vendors, suppliers, employees, or other contracting parties of Sellers or their Affiliates with respect to any aspect of the Purchased Assets or the transactions contemplated hereby, without the prior written consent of Sellers, which consent shall not be unreasonably withheld.
(i) Buyer shall be entitled to inspect, in accordance with this Section 6.2(h), all of the Purchased Assets located adjacent to any Point of Interconnection (as defined in the Interconnection Agreement), as shown in Schedule A to the Interconnection Agreement, to verify and/or determine the accuracy of the data, drawings, and records described in such Schedule. The Parties shall cooperate to schedule Buyer's inspection at the Facility so that any interference with the operation of the Facility is minimized, to the extent reasonably feasible, and so that Buyer may complete its inspections of the Facility within thirty (30) working days of commencement of inspections and within two (2) months after the execution of this Agreement.
(ii) Sellers shall provide, or shall cause to be provided, to Buyer, access to the Facility at the times scheduled for the inspections. Buyer shall provide qualified engineering, operations, and maintenance personnel to escort Buyer's personnel and to assist Buyer's personnel in conducting the inspections. Sellers and Buyer shall each bear their own costs of participating in the inspections. At a mutually convenient time not more than one (1) month after Buyer has completed its inspections, the Parties shall meet to discuss whether, as a result of the inspections, it is appropriate to modify Schedule A to the Interconnection Agreement to portray more accurately the Points of Interconnection. Any modification to any portion of Schedule A of the Interconnection Agreement to which the Parties agree shall thereafter be deemed part of Schedule A of the Interconnection Agreement for all purposes under the Interconnection Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Energy East Corp), Asset Purchase Agreement (Pennsylvania Electric Co)
Access to Information. (a) Sellers agree thatFrom March 1, until 2004 or, if earlier, the earlier date an application is filed with the ICC for approval of the Executory Contract Designation Deadline and the termination of transactions contemplated by this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to until the Closing, to the Chief Financial Officer extent permitted by applicable Law (including antitrust Laws), the Dynegy Parties shall afford the employees, counsel, accountants, consultants and representatives of Parent or his designeePurchaser reasonable access, during normal business hours, to the offices, properties, facilities, work papers and books and records of the IPC Companies and their Affiliates and their accountants relating to the Business, including organizational charts and other human resources records, information systems architecture, database designs/structures, sample data extracts, and following hardware/software inventory including code and designs (with the exception of confidential personnel records or information as to which disclosure would result in the loss of a legal privilege or protection) as Purchaser reasonably deems necessary or advisable, and to those Active Employees to whom Purchaser reasonably requests access; provided, however, that in no event shall Dynegy or Seller be deemed to have breached the provisions of this Section 5.2(a) with respect to the access provided to the counsel, accountants, consultants and representatives of Purchaser if the Dynegy Parties have used commercially reasonable efforts to cause their respective counsel, accountants and representatives to provide the level of access otherwise required pursuant to this Section 5.2(a). All information and knowledge obtained as a result of or in connection with in any investigation conducted or access provided pursuant to this Section 5.2(a) shall be subject to the Confidentiality Agreement and any joint defense agreement entered into by the parties in accordance with their respective terms and the terms hereof.
(b) From March 1, 2004 or, if earlier, the date an application is filed with the ICC for approval of the transactions contemplated by this Agreement, until the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant extent permitted by applicable Law and without unreasonable interference with IPC's business, Dynegy shall and shall cause IPC to this Section 6.1(a), Seller shall inform cooperate with Purchaser in writing planning and preparation for integration of operations, systems, processes and other key business activities of IPC and Purchaser, including identification and commitment of IPC personnel for integration planning and making available IPC personnel to serve as to an integration coordinator and key support personnel in the general nature areas of what is being withheld Information Technology, Human Resources, Energy Delivery and the reason for withholding such materialAccounting.
(bc) Any investigation Purchaser, Dynegy and examination contemplated by this Section 6.1 Seller shall be subject provide reasonable cooperation to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateeach other, and shall cause their Subsidiaries respective officers, employees, accountants, consultants and representatives to provide reasonable cooperation to each other, for a period of 180 days after the Closing to ensure the orderly transition of the Business from Seller to Purchaser and to minimize any disruption to the respective businesses of Seller, Dynegy and Purchaser that might result from the transactions contemplated hereby. After the Closing, upon reasonable written notice, Purchaser, Dynegy and Seller shall furnish or cause to be furnished to each other and their employees, counsel, auditors and representatives reasonable access, during normal business hours, to such information and assistance relating to the Business as is reasonably necessary for planning any systems conversions, process changes, litigation, employee benefits, environmental, financial reporting and accounting matters, the preparation and filing of any Tax Returns or the defense of any Tax audit, claim or assessment or any other similar reasonable matter. In no event shall Purchaser, Dynegy or Seller be deemed to have breached the provisions of this Section 5.2(c) with respect to the access provided to their respective Representatives counsel, auditors and representatives if the party obligated to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each provide access pursuant to the terms of Purchaser and its Representatives this Section 5.2(c) shall use their have used commercially reasonable best efforts to not materially cause their respective counsel, auditors and representatives to provide the level of access otherwise required pursuant to this Section 5.2(c). Each party shall reimburse the other for reasonable out-of-pocket costs and expenses incurred in assisting the other pursuant to this Section 5.2(c).
(d) No party shall be required by any provision of Section 5.2(a), (b) or (c), 5.12, 5.17 or 7.2 to take any action that would unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations or result in any actual or reasonably expected breach of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyapplicable Law.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Ameren Corp), Stock Purchase Agreement (Union Electric Co)
Access to Information. (a) Sellers agree that, From the date of this Agreement until the earlier of Closing Date (and, with respect to the Executory Contract Designation Deadline Acquired Stores to be transferred at each Subsequent Closing, each Subsequent Closing Date and the termination of this AgreementDistribution Center to be transferred at the Distribution Center Closing Date, Purchaser shall the Distribution Center Closing), upon reasonable prior notice, and except as determined in good faith to be entitled, through its Representatives or otherwise, appropriate to have reasonable access ensure compliance with any applicable Laws and subject to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations any applicable privileges (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any privilege) and contractual confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a)obligations, Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries its Affiliates and each of their respective Representatives to cooperate(i) afford the Representatives of Buyer reasonable access, with Purchaser during normal business hours, to the offices, properties, books and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality records of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers Acquired Stores; (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellersii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s the Representatives of Buyer such additional financial and operating data and other information regarding the Acquired Stores as Purchaser Buyer may from time to time reasonably request; and (iii) make available to the Representatives of Buyer and its Affiliates those employees of Seller and its Affiliates whose assistance, subjectexpertise, testimony, notes and recollections or presence may be necessary to assist Buyer, its Affiliates or its or their respective Representatives in connection with its inquiries, including the presence of such persons as witnesses in hearings or trials for such purposes provided, however, that such investigation shall not unreasonably interfere with any of the businesses or operations of Seller or any of its Affiliates; and provided, further, that the auditors and accountants of Seller or any of its Affiliates shall not be obliged to make any work papers available to any Person unless and until such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by Seller, Buyer shall enter into a customary joint defense agreement with Seller with respect to any information to be provided to Buyer pursuant to this Section 5.02(a).
(b) In addition to the provisions of Section 5.03, from and after the Closing Date, in each caseconnection with any reasonable business purpose, including the preparation of Tax Returns, claims relating to Excluded Liabilities, financial statements, or the determination of any matter relating to the rights or obligations of Seller or any of its Affiliates under any of the Transaction Agreements, upon reasonable prior notice, and except as determined in good faith to be necessary to (i) ensure compliance with any applicable Law, (ii) preserve any applicable privilege (including the attorney-client privilege), or (iii) comply with any contractual confidentiality obligations, Buyer shall, and shall cause its Affiliates and its Representatives to, (A) afford the Representatives of Seller and its Affiliates reasonable access, during normal business hours, to the confidentiality restrictions outlined offices, properties, books and records of Buyer and its Affiliates in respect of the Acquired Stores and the Purchased Assets (and related Liabilities), (B) furnish to the Representatives of Seller and its Affiliates such additional financial and other information regarding the Acquired Stores and the Purchased Assets (and related Liabilities) as Seller or its Representatives may from time to time reasonably request and (C) make available to the Representatives of Seller and its Affiliates those employees of Buyer and its Affiliates whose assistance, expertise, testimony, notes and recollections or presence may be necessary to assist Seller, its Affiliates or its or their respective Representatives in connection with its inquiries for any of the purposes referred to above, including the presence of such persons as witnesses in hearings or trials for such purposes; provided, however, that such investigation shall not unreasonably interfere with the business or operations of Buyer or any of its Affiliates; provided, further, that the auditors and accountants of Buyer or its Affiliates shall not be obligated to make any work papers available to any Person except in accordance with such auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants. If so requested by Buyer, Seller or one of its Affiliates shall enter into a customary joint defense agreement with Buyer and its Affiliates with respect to any information to be provided to Seller pursuant to this Section 5.02(b).
(c) Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein Agreement to the contrary, Purchaser no Party hereto shall consult with Sellers be required, prior to conducting the Closing, to disclose, or cause the disclosure of, to any environmental investigations other Party or examinations its Affiliates or its or their Representatives (or provide access to any offices, properties, books or records of such Party or any natureof their Affiliates that could result in the disclosure to such persons or others of) any confidential information relating to trade secrets, including Phase I proprietary know-how, processes or patent, trademark, trade name, service ▇▇▇▇ or copyright applications or product development, or pricing and Phase II site assessments and marketing plans, nor shall any environmental sampling in respect Party be required to permit or cause others to permit any other Party or its Affiliates or Representatives to have access to or to copy or remove from the offices or properties of the Transferred Real Propertysuch Party or any of its Affiliates any documents, drawings or other materials that might reveal any such confidential information.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Rite Aid Corp), Asset Purchase Agreement (Walgreens Boots Alliance, Inc.)
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledthe Sellers will, through its during ordinary business hours and upon reasonable notice (i) give the Buyer and the Buyer Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties all books, records, plants, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted related to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller Business or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound the Assumed Liabilities unless such access would violate applicable law; (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to ii) permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser Buyer and its Representatives in connection representatives to make such reasonable inspections thereof as the Buyer may reasonably request; (iii) furnish the Buyer with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the Purchased Assets, the related Business and the Assumed Liabilities as Purchaser the Buyer may from time to time reasonably request; and (iv) furnish the Buyer a copy of each report, subjectSchedule or other document filed or received by them with respect to the Purchased Assets or the related Business with the SEC, MPUC, MDEP, FERC, DOE, EPA or other relevant regulatory agency; provided, however, that (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) the Sellers shall not be required to take any action which would constitute a waiver of the attorney-client privilege and (C) the Sellers need not supply the Buyer with any information which the Sellers, in each casetheir reasonable judgment, are under a legal obligation not to supply, provided that Sellers describe, to the confidentiality restrictions outlined extent permissible, the nature of the information withheld. Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein 7.2 to the contrary, Purchaser (i) the Sellers will only furnish or provide such access to personnel and medical records as is required by law, and (ii) the Buyer shall consult with Sellers prior not have the right to conducting any environmental investigations perform or examinations of any nature, including Phase I and Phase II site assessments and conduct any environmental sampling in respect or testing at, in, on, or underneath or adjacent to the Purchased Assets.
(b) All information furnished to or obtained by the Buyer and the Buyer Representatives pursuant to this Section 7.2 shall be "Information" for purposes of Section 7.11 hereof.
(c) Subject to the last two sentences of this paragraph (c), for a period of ten years after the Closing Date, the Sellers and their representatives shall have reasonable access to all of the Transferred Real Propertybooks and records of the Purchased Assets transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Sellers in connection with matters relating to or affected by the operation of the Purchased Assets prior to the Closing Date. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Sellers shall be solely responsible for any costs or expenses incurred by them pursuant to this Section 7.2(c). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such ten-year period, the Buyer shall, prior to such disposition, give the Sellers a reasonable opportunity, at the Sellers' expense, to segregate and remove such books and records as the Sellers may select.
(d) Subject to the last two sentences of this paragraph (d), for a period of ten years after the Closing Date, the Buyer and Buyer Representatives shall have reasonable access to all of the books and records of the Purchased Assets retained by the Sellers to the extent that such access may reasonably be required by the Buyer in connection with matters relating to or affected by the operation of the Purchased Assets subsequent to the Closing Date; provided, however, that Sellers shall not be required to provide access to personnel or medical records except as required by law. Such access shall be afforded by the Sellers upon receipt of reasonable advance notice and during normal business hours. In addition, the Sellers will cooperate in the defense of any action brought against the Buyer by a former employee of the Sellers. The Buyer shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 7.2(d). If any Seller shall desire to dispose of any such books and records prior to the expiration of such ten-year period, such Seller shall, prior to such disposition, give the Buyer a reasonable opportunity at the Buyer's expense, to segregate and remove such books and records as the Buyer may select; provided, however, that the Sellers will use best efforts to preserve all employment and medical records of those employees who are hired by the Buyer as of the Closing Date, for a period of not less than ten (10) years from the Closing Date.
(e) If within ten years after the Closing Date the MPUC shall commence an investigation of the reasonableness of any term or condition of this Agreement, Buyer shall fully cooperate with the Sellers in providing any information or testimony which may be helpful to Sellers in establishing the reasonableness of the terms and conditions of the Agreement. Sellers shall be responsible for any costs or expenses incurred by Buyer pursuant to this Section 7.2(e).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Pp&l Inc), Asset Purchase Agreement (Bangor Hydro Electric Co)
Access to Information. (a) Sellers agree that, until After the earlier of the Executory Contract Designation Deadline and the termination of this AgreementClosing, Purchaser shall be entitledprovide to the officers, through its Representatives or otherwiseemployees, to have agents and representatives of any Seller Indemnitees reasonable access to (i) the executive officers Books and Representatives of Sellers Records with respect to the Hotel, (ii) the Property, and (iii) the properties employees at the Hotel, for any purpose deemed reasonably necessary or advisable by Seller, including, without limitation, to prepare any documents required to be filed by any Starwood Entity under Applicable Law or to investigate, evaluate and defend any claim, charge, audit, litigation or other facilitiesproceeding made by any Person or insurance company involving any Starwood Entity; provided, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no (A) such investigation or examination Seller Indemnitees shall be permitted provide reasonable prior notice to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound Purchaser; (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may B) Purchaser shall not be required to avoid provide such conflict, or restructure the form of access, so as to permit the access requested)during non business hours; provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform (C) Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any accompany the officer, employees, agents or representatives of such accountant Seller Indemnitees in providing access to the Books and Records, the Property or the employees of Purchaser (or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information manager) as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined provided in this Section 6.18.8; and (D) Seller shall defend, indemnify and hold harmless the Purchaser Indemnitees in accordance with ARTICLE XV from and against any Indemnification Loss incurred by any Purchaser Indemnitees arising from any examinations, tests, investigations or studies of the Property conducted by the Seller Indemnitees, its employees, agents or representatives pursuant to this Section 8.8. Notwithstanding anything contained herein Purchaser, at its cost and expense, shall retain all Books and Records with respect to the contrary, Purchaser Hotel for a period of five (5) years after the Closing. This Section 8.8 shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of survive the Transferred Real PropertyClosing.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Chesapeake Lodging Trust), Purchase and Sale Agreement (Chesapeake Lodging Trust)
Access to Information. (a) Sellers agree that, until prior to the earlier of the Executory Contract Designation Deadline and the termination of this AgreementClosing Date, Purchaser shall be entitled, through its Representatives or otherwiseofficers, employees and representatives (including, without limitation, its legal advisors and accountants), to have reasonable access to make such investigation of the executive officers properties, businesses and Representatives operations of Sellers and such examination of the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) financial condition of Sellers as it reasonably requests and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no make extracts and copies of such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, books and following the Closing, to the Chief Restructuring Officer of Parent or his or her designeerecords. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include be conducted during regular business hours and under reasonable access circumstances, and Sellers shall cooperate fully therein. No investigation by Purchaser prior to Sellers’ executive officers (and employees or after the date of this Agreement shall diminish or obviate any of the representations, warranties, covenants or agreements of Sellers contained in this Agreement or the Seller Documents. In order that Purchaser may have full opportunity to make such physical, business, accounting and legal review, examination or investigation as it may reasonably request of the affairs of Sellers, Sellers shall use their respective Subsidiaries identified by such executive commercially reasonable efforts to cause the officers), officesemployees, properties consultants, agents, accountants, attorneys and other facilitiesrepresentatives of Sellers to cooperate fully with such representatives in connection with such review and examination. Sellers shall promptly deliver to Purchaser such copies of all pleadings, motions, notices, statements, schedules, applications, reports and other papers filed by Sellers in the Chapter 11 Case. Sellers shall promptly provide to Purchaser all documents and materials relating to the proposed sale of the Purchased Assets, or any portion thereof, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of otherwise cooperate with Purchaser, whether such meeting to the extent reasonably necessary in connection with Purchaser's preparation for or participation in any part of the Chapter 11 Case in which Purchaser's participation is in personnecessary, telephonic required or otherwise) and reasonably appropriate. Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish promptly deliver to Purchaser’s Representatives such additional financial and operating data Purchaser all pleadings, motions, notices, statements, schedules, applications, reports and other information papers filed in any other judicial or administrative proceeding as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Aaipharma Inc), Asset Purchase Agreement (Xanodyne Pharmaceuticals Inc)
Access to Information. (a) Sellers agree thatAfter Closing, until the earlier of the Executory Contract Designation Deadline Buyer will, and the termination of this Agreement, Purchaser shall be entitled, through will cause its Representatives to, at no cost to Buyer or otherwiseits Representatives, afford to have Seller, including its Representatives, on reasonable notice and at reasonable times, reasonable access to all books, records, files and documents related to the executive officers Business in order to permit Seller to prepare and Representatives of Sellers file its Tax Returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in any other investigation and defend any Proceedings relating to or involving Seller, the Subsidiary or the Business for which Seller may be responsible, to discharge its obligations under this Agreement and the properties other Related Documents to which it is a party and for other facilitiesreasonable purposes and will afford Seller reasonable assistance in connection therewith. Buyer will cause such records to be maintained for not less than seven (7) years from the Closing Date and will not dispose of such records without first offering in writing to deliver them to Seller; provided, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no in the event that Buyer transfers all or a portion of the Business to any third party during such investigation period, Buyer may transfer to such third party all or examination a portion of the books, records, files and documents related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.2(a). In addition, on and after the Closing Date, at Seller’s request, Buyer shall make available to Seller and its Affiliates and Representatives, on reasonable notice and at reasonable times, those employees of Buyer reasonably requested by Seller in connection with any Proceeding, including to provide testimony, to be permitted deposed, to act as witnesses and to assist counsel; provided, however, that (i) such access to such employees shall not unreasonably interfere with the extent that it wouldnormal conduct of the operations of Buyer and (ii) Seller shall reimburse Buyer for the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Seller. Without limiting the application of Section 6.1(d), in Sellers’ reasonable determination, require any Seller, any Subsidiary of any all documents or information furnished by Buyer or obtained by Seller or any of their respective its Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 hereunder shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a6.1(d), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Laclede Group Inc), Purchase and Sale Agreement (Southern Union Co)
Access to Information. (a) Sellers agree thatOn and after the date of this Agreement, until the Seller Parties will furnish to Parent such information with respect to the Company as Parent shall reasonably request. Without limitation of the foregoing, the Seller Parties shall (i) afford to Parent and its officers, employees, accountants, consultants, counsel and other authorized representatives reasonable access, throughout the period prior to the earlier of the Executory Contract Designation Deadline and Closing Date or the termination of date this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which caseAgreement is terminated, to the extent requested by PurchaserCompany's plants, Sellers will properties (including, without limitation, the Real Property), and books and records relating to the Company; (ii) use reasonable its best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required cause its representatives to avoid such conflict, or restructure the form of access, so as furnish to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives authorized representatives such additional financial and operating data and other information as Purchaser to the Company as Parent or its duly authorized representatives may from time to time reasonably request; and (iii) afford Parent and its representatives reasonable access, subject, in each casethroughout the period prior to the Closing Date, to the confidentiality restrictions outlined Company's present and potential customers relating to the Business, such that Parent may conduct such due diligence investigation relating to customer relations as Parent deems reasonably necessary or appropriate. The Seller Parties hereby release, discharge and hold harmless each of Parent and Buyer, any affiliate or subsidiary of Parent or Buyer, and any officer, director, shareholder, employee, agent, attorney, joint venturer, partner, servant, consultant, representative, trustee, successor or assign of Parent or Buyer or of any of its affiliates or subsidiaries, from all liability or claims by reason of any such access or contact referred to in this Section 6.1. Notwithstanding anything contained herein 5.2, except for any misuse by Parent or Buyer of such information.
(b) Parent and Buyer covenant and agree that, prior to the contraryClosing, Purchaser all due diligence materials will be used solely for the purposes of assessing the Company in connection with the Buyer Parties' possible acquisition thereof pursuant to this Agreement, and that any other use shall consult with Sellers prior to conducting be strictly prohibited; provided, however, that following the Closing, Parent and Buyer may use all such materials for any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling purposes in respect of the Transferred Real Propertytheir sole discretion.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Wca Waste Corp)
Access to Information. (a) Sellers agree thatThe Acquiror shall afford Acquiree its accountants, until counsel and other representatives (including the earlier of the Executory Contract Designation Deadline and the termination of this AgreementAcquiree Shareholders), Purchaser shall be entitledreasonable access, through its Representatives or otherwiseduring normal business hours, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businessesproperties, books, Contracts, personnel, records and operations (including personnel of the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require Acquiror at any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, time prior to the ClosingClosing in order to enable Acquiree to obtain all information concerning the business, to assets and properties, results of operations and personnel of the Chief Financial Officer of Parent or his designee, and following Acquiror as Acquiree may reasonably request. No information obtained in the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld foregoing investigation by Acquiree pursuant to this Section 6.1(a), Seller 7.1(a) shall inform Purchaser in writing as affect or be deemed to modify any representation or warranty contained herein or the conditions to the general nature obligations of what is being withheld and the reason for withholding such materialAcquiror or the Acquiror Principal Shareholder to consummate the transactions contemplated hereby.
(b) Any investigation and examination contemplated by this Section 6.1 The Acquiree shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateafford Acquiror its accountants, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties counsel and other facilitiesrepresentatives, and booksreasonable access, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each caseduring normal business hours, to the confidentiality restrictions outlined properties, books, records and personnel of the Acquiree at any time prior to the Closing in order to enable Acquiror to obtain all information concerning the business, assets and properties, results of operations and personnel of the Acquiree as Acquiror may reasonably request. No information obtained in the foregoing investigation by Acquiror pursuant to this Section 6.1. Notwithstanding anything 7.1(b) shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect obligations of the Transferred Real PropertyAcquiree or the Acquiree Shareholders to consummate the transactions contemplated hereby.
Appears in 1 contract
Access to Information. (a) Sellers agree thatAt any time after the Closing: (i) upon the request of Seller, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreementupon reasonable written notice, Purchaser shall furnish or cause to be entitledfurnished to each of Seller, through its Representatives or otherwiseBMS and ▇▇▇▇▇▇▇▇, as promptly as practicable, such information and assistance (to have reasonable the extent within the control of the Purchaser) relating to the Acquired Assets (including access to the executive officers Books and Representatives Records) as is reasonably requested for the filing of Sellers all Tax Returns, and making of any election related to Taxes, the properties preparation for any audit by any taxing authority, the prosecution or defense of any claim, suit or proceeding related to any Tax Return, and in connection with any Proceedings, subject to reasonable rules and regulations imposed by Purchaser and applicable Requirements of Laws; and (ii) the parties shall cooperate with each other facilitiesin the conduct of any audit or other proceeding relating to Taxes involving the Business. Purchaser shall retain the Books and Records included in the Acquired Assets for a period of seven (7) years after the Closing. After the end of such seven-year period, businessesbefore disposing of such Books and Records, booksPurchaser shall give notice to such effect to Seller (or its successors or assigns, Contracts, personnel, records as applicable) and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any give Seller, any Subsidiary of any Seller at Seller's cost and expense, an opportunity to remove and retain all or any part of their respective Representatives to disclose information subject to attorney-client privilege such Books or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Records as Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialselect.
(b) Any investigation and examination contemplated by this Section 6.1 shall be In addition, on or after the Closing: (i) subject to restrictions set forth in Section 6.24 7.02(d), for a period of forty-two (42) months after the Closing Date, unless a longer period is required by law, each of Seller, BMS and under applicable Law. Sellers ▇▇▇▇▇▇▇▇ shall cooperate▇▇▇▇▇ Purchaser and its employees, attorneys, accountants, officers, representatives and agents, during normal business hours and upon reasonable advance written notice, reasonable access to redacted copies of Retained Information, for review by Purchaser, to the extent practicable, at the reasonable request of Purchaser; and (ii) each of Seller, BMS and ▇▇▇▇▇▇▇▇ shall cause their Subsidiaries officers, employees, agents, auditors, Affiliates and each representatives to cooperate with the Purchaser, for a period of their respective Representatives one hundred and eighty (180) days after the Closing (or such longer period as otherwise stated in this Agreement), to cooperate, with ensure the orderly transition of the Business from Seller to Purchaser and its Representatives in connection with such investigation to minimize any disruption to the Business and examination, and each the other respective businesses of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiariesparties that might result from the transactions contemplated hereby. Without limiting the generality of the foregoing, subject upon Purchaser's request, BMS shall use commercially reasonable efforts to cause its officers, employees, agents, auditors, Affiliates and representatives to provide Purchaser with a reasonable level of support and cooperation in connection with the transfer of the BMS Patents to Purchaser to enable Purchaser's continued prosecution of the BMS Patents. Purchaser shall use the Retained Information only in accordance with the license granted pursuant to Section 6.1(a)2.03 of this Agreement. For the avoidance of doubt, any Retained Information delivered or disclosed to Purchaser in accordance with this Section 7.02(b) may be redacted or withheld by the Seller to the extent such investigation Retained Information is not relevant to the Business.
(c) Each of the parties shall reimburse the other parties for reasonable out-of-pocket costs and examination expenses incurred in assisting the other pursuant to this Section 7.02. No party shall include reasonable access be required by this Section 7.02 to Sellers’ executive officers take any action that would unreasonably interfere with the conduct of its business or unreasonably disrupt its normal operations (and employees of Sellers and their respective Subsidiaries identified by such executive officers)or, offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have in the right to be present at any meeting between any such accountant and Purchaser or Representative case of Purchaser, whether such meeting is in person, telephonic or otherwisethe Business).
(d) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined Nothing in this Section 6.1. Notwithstanding anything contained herein to 7.02 or otherwise in this Agreement shall require the contrary, Purchaser shall consult with Sellers prior to conducting disclosure or access by any environmental investigations or examinations party of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect documents or information that would cause such party to forfeit or waive attorney-client privilege accorded it under applicable Requirements of the Transferred Real PropertyLaws.
Appears in 1 contract
Sources: Asset Purchase Agreement (Women First Healthcare Inc)
Access to Information. (a) Sellers agree that, until Subject to Section 5.05 hereof and to the earlier terms of the Executory Contract Designation Deadline Confidentiality Agreement referred to therein, from the date hereof to and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their SubsidiariesClosing Date, including access to systemsupon reasonable notice, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateCEC shall, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser the members of the CMH Group (other than the Clarklift/Samsung Entities) and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), directors, employees and agents to, and shall use its commercially reasonable efforts to cause the Clarklift/Samsung Entities to, (i) afford the officers, employees and authorized agents and representatives of the Purchaser reasonable access, during normal business hours, to the offices, properties and other facilitiesproperties, and books, Contracts books and records of the Business and such members of the CMH Group and (including any document retention policies of Sellersii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives the officers, employees and authorized agents and representatives of the Purchaser such additional financial and operating data and other information regarding the assets, properties, goodwill and operations of such members of the CMH Group as the Purchaser may from time to time reasonably request; provided, subjecthowever, that such investigation shall not unreasonably interfere with the business or operations of CEC or any of its subsidiaries or affiliates or any member of the CMH Group; and provided further that nothing contained herein shall be construed as an express or implied waiver or forfeiture by CEC or any of its subsidiaries or affiliates or any member of the CMH Group of any attorney-client privilege, accountant-client privilege, work product privilege or any other privilege belonging to or accruing to the benefit of any of the foregoing. If, in the course of any investigation pursuant to this Section 5.03 or otherwise in connection with the Purchaser's evaluation of the transactions contemplated by this Agreement, the Purchaser discovers any breach of any representation or warranty contained in this Agreement or any circumstance or condition that upon Closing would constitute such a breach, the Purchaser covenants that it will promptly so inform CEC of such breach or incipient breach.
(b) In order to facilitate the resolution of various claims that may from time to time be asserted by or against or incurred by CEC or any of its subsidiaries or affiliates prior to or after the Closing Date, and in order to facilitate the preparation of any financial statements, tax returns or any documents required to be filed with governmental authorities by CEC or any of its subsidiaries or affiliates, upon reasonable notice, the Purchaser shall, and shall cause each casemember of the CMH Group (other than the Clarklift/Samsung Entities) to, and shall use its commercially reasonable efforts to cause the Clarklift/Samsung Entities to, from and after the Closing, (i) afford the officers, employees and authorized agents and representatives of CEC and its subsidiaries and affiliates reasonable access, during normal business hours, to the confidentiality restrictions outlined offices, properties, books and records of the Business and such members of the CMH Group (including the accountants, attorneys or other agents or representatives of any of the foregoing) with respect to the assets, properties, liabilities, employees and/or business (former and present) of the Business and such members of the CMH Group, (ii) furnish to the officers, employees and authorized agents and representatives of CEC and its subsidiaries and affiliates such additional financial and other information regarding the assets, properties, liabilities, employees and/or business (former and present) at the Business and such members of the CMH Group as CEC may from time to time reasonably request and (iii) make available to CEC and its subsidiaries and affiliates the employees of such members of the CMH Croup whose assistance, testimony or presence is necessary or desirable to assist CEC or any of its subsidiaries or affiliates in evaluating any such claims and in defending such claims, including the presence of such persons as witnesses in hearings or trials for such purposes; provided, however, that the foregoing shall not unreasonably interfere with the operations of the Purchaser or the members of the CMH Group and that CEC shall promptly reimburse the Purchaser for all out-of-pocket expenses reasonably incurred by the Purchaser in performing its obligations pursuant to this Section 6.1. Notwithstanding anything 5.03(b), other than any such expenses incurred in connection with any Covered Liability (as defined in Section 5.08 hereof); and provided, further that nothing contained herein shall be Construed as an express or implied waiver or forfeiture by the Purchaser or any of its subsidiaries or affiliates or any member of the CMH Group of any attorney-client privilege, accountant-client privilege, work product privilege or any other privilege belonging to or accruing to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations benefit of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyforegoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Clark Material Handling Co)
Access to Information. (a) Sellers agree that, until the earlier of the Executory Contract Designation Deadline Upon reasonable notice and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, subject to have reasonable access applicable laws relating to the executive officers and Representatives exchange of Sellers and information, the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateCompany shall, and shall cause each of its subsidiaries to, afford to the officers, employees, accountants, counsel and other representatives of the Parent, during normal business hours during the period prior to the Effective Time, reasonable access to all its properties, books, contracts, commitments and records, and to its officers, employees, accountants, counsel and other representatives and, during such period, the Company shall, and shall cause its subsidiaries to, make available to the Parent (i) a copy of each report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of federal securities laws and (ii) all other information concerning its business, properties and personnel as such other party may reasonably request. No investigation by any of the parties or their Subsidiaries respective representatives shall affect the representations, warranties, covenants or agreements of the other set forth herein. The information provided pursuant to Section 5.5(a) will be used solely for the purpose of the transactions contemplated hereby, and unless and until the Merger is consummated, such information will be kept secret and confidential by Parent and Purchaser, except that the information provided pursuant to Section 5.5(a) or portions thereof may be disclosed to those of Parent's and Purchaser's or their affiliates' directors, officers, employees, agents and advisors (collectively, the "Representatives") who (a) need to know such information for the purpose of the transactions contemplated hereby, (b) shall be advised by Parent or Purchaser, as the case may be, of this provision, (c) agree to hold the information provided pursuant to Section 5.5(a) as secret and confidential and (d) agree with Parent and Purchaser to be bound by the provisions hereof. Parent and Purchaser jointly agree to be responsible for any breach of this section by any of their Representatives. If this Agreement is terminated, Parent shall, and shall cause the Purchaser and each of their respective Representatives to cooperateto, with Purchaser return or destroy (and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject certify destruction of) all information provided pursuant to Section 6.1(a5.5(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 1 contract
Access to Information. (a) Sellers agree that, until During the period from the execution of this Agreement through the earlier of the Executory Contract Designation Deadline and (I) the termination of this Agreement pursuant to its terms and (II) the Closing, Seller shall cause the Company to, subject to restrictions imposed from time to time upon advice of counsel respecting the provision of privileged communications or competitively sensitive information and to any applicable confidentiality agreement in force as of the date hereof, afford representatives of Purchaser, following notice from Purchaser to Seller in accordance with this SECTION 5.3, reasonable access during normal business hours to all facilities of the Company. In conducting any inspection of any facilities of the Company, neither Purchaser nor any of its representatives shall (i) contact or have any discussions with any of the Company's employees, customers, agents or representatives, unless in each case Purchaser obtains the prior written consent of Seller, (ii) interfere with the business of the Company conducted at such facility, (iii) damage any property or any portion thereof located at any facility, (iv) perform any procedure or investigation (including any environmental investigation or study) or (v) have access to or review a Consolidated or Combined Return without Seller's prior written consent; provided, however, that in no such event shall any environmental investigation or study shall be allowed to the extent involving testing or sampling of environmental media or building materials. Purchaser shall schedule and coordinate all inspections with Seller and shall give Seller at least three (3) Business Days prior written notice thereof, setting forth the inspection or materials that Purchaser or its representatives intend to conduct. Notwithstanding anything to the contrary set forth in this Agreement, Purchaser shall be entitled, through neither Seller nor any of its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations Affiliates (including the Purchased Assets Company) shall be required to disclose to Purchaser or any of its representatives any (i) information (A) relating to any sale or divestiture process conducted by Seller or its Affiliates for the Company or its business (except with respect to the Company's transfer to Seller of Wildseed and Assumed Liabilitiesthe Wildseed business prior to the date hereof) or Seller's or its Affiliates' (or their representatives') evaluation of Sellers and their Subsidiariesthe Company or its business in connection therewith, including access projections, financial or other information relating thereto or (B) if doing so could violate any contract in existence as of the date of this Agreement or Law to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any which Seller or any of their respective Representatives its Affiliates (including the Company) is a party or is subject or which it believes in good faith could result in a loss of the ability to disclose information subject to successfully assert a claim of privilege (including, without limitation, the attorney-client privilege and work-product privileges) or in conflict with (ii) any confidentiality agreement to which any Seller, any Subsidiary of any Seller Consolidated or Combined Return or any of their respective Representatives are bound (other information relating to Taxes or Tax Returns in which case, each case other than to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access relating solely to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialCompany.
(b) Any investigation and examination contemplated by All information obtained pursuant to this Section 6.1 SECTION 5.3 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyConfidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Nuance Communications, Inc.)
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledSeller will, through at reasonable times and upon reasonable notice: (i) give Buyer and its Representatives or otherwise, to have reasonable access to the executive officers its and Representatives of Sellers York Haven's managerial personnel and the properties to all books, records, plans, equipment, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting the Purchased Assets and Assumed LiabilitiesAssets; (ii) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection furnish Buyer with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the Purchased Assets as Purchaser Buyer may from time to time reasonably request, subjectand permit Buyer to make such reasonable Inspections thereof as Buyer may request; (iii) furnish Buyer at its request a copy of each material report, in each caseschedule or other document filed by Seller, York Haven or any of its Affiliates with respect to the confidentiality restrictions outlined Purchased Assets with the SEC, FERC, PaPUC, PaDEP, or any other Governmental Authority; and (iv) furnish Buyer with all such other information as shall be reasonably necessary to enable Buyer to verify the accuracy of the representations and warranties of Seller contained in this Agreement; provided, however, that (A) any such inspections and investigations shall be conducted in such a manner as not to interfere unreasonably with the operation of the Purchased Assets, (B) Seller shall not be required to take any action which would constitute a waiver of the attorney-client privilege, and (C) Seller need not supply Buyer with any information which Seller is under a legal or contractual obligation not to supply. Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein 6.2 to the contrary, Purchaser Seller will only furnish or provide such access to Transferring Employee Records and will not furnish or provide access to other employee personnel records or medical information unless required by law or specifically authorized by the affected employee, nor shall consult Buyer have the right to administer to any of Seller's employees any skills, aptitudes, psychological profile, or other employment related test. Seller agrees to provide Buyer with Sellers prior to conducting any environmental investigations or examinations copies of any natureall documents and reports, including Phase I without limitation testing reports, provided to or received from Siemens Power Corporation under the Siemens' Agreement with respect to the testing and Phase II site assessments and commissioning of Portland Unit 5. Buyer shall not have the right to perform or conduct any environmental sampling in respect or testing at, in, on, or underneath the Purchased Assets.
(b) Each Party shall, and shall use its best efforts to cause its Representatives to, (i) keep all Proprietary Information of the Transferred Real Propertyother Party confidential and not to disclose or reveal any such Proprietary Information to any person other than such Party's Representatives and (ii) not use such Proprietary Information other than in connection with the consummation of the transactions contemplated hereby. After the Closing Date, any Proprietary Information to the extent related to the Purchased Assets shall no longer be subject to the restrictions set forth herein. The obligations of the Parties under this Section 6.2(b) shall be in full force and effect for three (3) years from the date hereof and will survive the termination of this Agreement, the discharge of all other obligations owed by the Parties to each other and the closing of the transactions contemplated by this Agreement.
(c) For a period of seven (7) years after the Closing Date (or such longer period as may be required by applicable law or Section 6.8(g)), each Party and its Representatives shall have reasonable access to all of the books and records of the Purchased Assets, including all Transferring Employee Records in the possession of the other Party to the extent that such access may reasonably be required by such Party in connection with the Assumed Liabilities or the Excluded Liabilities, or other matters relating to or affected by the operation of the Purchased Assets. Such access shall be afforded by the Party in possession of any such books and records upon receipt of reasonable advance written notice and during normal business hours. The Party exercising this right of access shall be solely responsible for any costs or expenses incurred by it or the other Party with respect to such access pursuant to this Section 6.2(c). If the Party in possession of such books and records shall desire to dispose of any books and records upon or prior to the expiration of such seven-year period (or any such longer period), such Party shall, prior to such disposition, give the other Party a reasonable opportunity at such other Party's reasonable expense, to segregate and remove such books and records as such other Party may select.
(d) Notwithstanding the terms of Section 6.2(b) above, the Parties agree that prior to the Closing Buyer may reveal or disclose Proprietary Information to any other Persons in connection with Buyer's financing of its purchase of the Purchased Assets or any equity participation in Buyer's purchase of the Purchased Assets (provided that such Persons agree in writing to maintain the confidentiality of the Proprietary Information in accordance with this Agreement).
(e) Upon the other Party's prior written approval (which will not be unreasonably withheld or delayed), either Party may provide Proprietary Information of the other Party to the PaPUC, the SEC, the FERC or any other Governmental Authority with jurisdiction or any stock exchange, as may be necessary to
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Electric Co)
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledthe Seller will, through its during ordinary business hours and upon reasonable notice (i) give the Buyer and the Buyer Representatives or otherwise, to have reasonable access to the executive officers its managerial personnel and Representatives of Sellers and the properties to all books, records, plants, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound the Buyer is permitted access by law; (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to ii) permit the access requested)Buyer to make such reasonable inspections thereof as the Buyer may reasonably request; provided further, that notwithstanding (iii) furnish the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection Buyer with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the Assets in the possession of the Seller as Purchaser the Buyer may from time to time reasonably request; (iv) furnish the Buyer a copy of each material report, subject, in each case, schedule or other document filed or received by the Seller or any of the Seller's Affiliates with respect to the confidentiality restrictions outlined Assets with the SEC, MDTE, or FERC; provided, however, that (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Assets, (B) the Seller shall not be required to take any action which would constitute a waiver of the attorney/client privilege and (C) the Seller need not supply the Buyer with any information which the Seller is under a legal obligation not to supply; and (v) give the Buyer access to the environmental reports identified in Schedule 5.11 and Operating Permits and other permits and licenses for the Assets. Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein 7.2 to the contrary, Purchaser (i) the Seller will only furnish or provide such access to personnel and medical records as is required by law, and (ii) the Buyer shall consult with Sellers prior not have the right to conducting any environmental investigations perform or examinations of any nature, including Phase I and Phase II site assessments and conduct any environmental sampling in respect or testing at, in, on, or underneath the Assets without the approval of the Transferred Real PropertySeller.
(b) All information furnished to or obtained by the Buyer and the Buyer Representatives pursuant to this Section 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Proprietary Information" (as defined in the Confidenti- ality Agreement).
(c) For a period of ten years after the Closing Date, the Seller and its representatives shall have reasonable access to all of the books and records related to the Assets transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operation of the Assets prior to the Closing Date; provided, however, that the Seller shall first enter into a definitive confidentiality agreement with the Buyer with respect thereto on such terms and conditions as the Buyer may reasonably require. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 7.2(c). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such ten-year period, the Buyer shall, prior to such disposition, give the Seller a reasonable opportunity at the Seller's expense, to segregate and remove such books and records as the Seller may select.
Appears in 1 contract
Access to Information. The Investor has reviewed and understands the SEC Reports (aas that term is defined in Section 4(g)), as well as supplemental information with respect to the Company's warrants provided pursuant to the e-mail sent on August 26, 2008 at 11:51 a.m. (New York Time) Sellers agree thatfrom ▇▇▇▇▇ ▇▇▇▇▇, until the earlier on behalf of the Executory Contract Designation Deadline Company, to, among others, ▇▇▇▇ ▇▇▇, on behalf of the Investor (the "Supplemental E-mail"), and neither the Company nor any of its representatives have made any other representations or warranties to the Investor with respect to the Company except as contained herein, in the SEC Reports or in the Supplemental E-mail. Specifically, the Investor acknowledges that the SEC Reports disclose that the Company is actively exploring acquisition opportunities and the termination Investor acknowledges that there can be no assurance that any such acquisition will be consummated. The Investor has also been afforded the opportunity to ask questions of, and receive answers from, the officers and/or directors of this Agreementthe Company concerning the terms and conditions of the Offering and to obtain any additional information, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that the Company possesses such information or can acquire it wouldwithout unreasonable effort or expense, in Sellers’ reasonable determination, require any Seller, any Subsidiary necessary to verify the accuracy of any Seller or any the information furnished; and has availed himself of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, such opportunity to the extent requested he considers appropriate in order to permit him to evaluate the merits and risks of an investment in the Securities. It is understood that all documents, records, and books pertaining to this investment have been made available for inspection by Purchaserthe Investor during reasonable business hours at the Company’s principal place of business. Notwithstanding the foregoing, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may it is understood that the Investor is purchasing the Securities without being furnished any prospectus setting forth all of the information that would be required to avoid such conflict, be furnished under the Securities Act and this Offering has not been passed upon or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent merits thereof endorsed or his designee, and following the Closing, to the Chief Restructuring Officer of Parent approved by any state or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialfederal authorities.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 1 contract
Access to Information. (a) Sellers agree thatFrom the date hereof until _____________________ the Closing Date, until subject to the earlier terms of the Executory Contract Designation Deadline Confidentiality Agreement referred to in Section 6.1, any applicable contractual restrictions and applicable legal privileges, and to the termination of this Agreementextent applicable law would not thereby be violated Seller will (i) give, Purchaser shall be entitledand will cause the Companies and their Subsidiaries to give, through Buyer, its Representatives or otherwisecounsel, financial advisors, auditors and other authorized representatives full access, upon reasonable prior notice and during normal business hours, to have reasonable access the offices, properties, books and records of the Companies and each of their Subsidiaries and to the executive officers books and Representatives records of Sellers and Seller relating to the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers Companies and their Subsidiaries, including access (ii) furnish, and will cause the Companies and their Subsidiaries to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which casefurnish, to the extent requested by PurchaserBuyer, Sellers will use reasonable best efforts to seek an amendment or appropriate waiverits counsel, or necessary consentsfinancial advisors, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties auditors and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any authorized representatives such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, relating to the confidentiality Companies or any of their Subsidiaries as such Persons may reasonably request and (iii) instruct the employees, counsel and financial advisors of Seller or the Companies or any of their Subsidiaries to cooperate with Buyer in its investigation of the Companies or any of their Subsidiaries; provided that this Section 5.2 shall not obligate Seller to provide or make available to Buyer any employee medical records; provided, further, that to the extent contractual restrictions outlined limit Seller's ability to take any of the actions set forth in this Section 6.1. Notwithstanding anything contained herein 5.2, Seller shall use its best efforts to obtain any necessary contractual consent or accommodate any reasonable request by Buyer with respect to such action by alternative means and provided, further, that to the contrary, Purchaser shall consult with Sellers prior extent applicable legal privileges or applicable laws limit Seller's ability to conducting take any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyactions set forth in this Section 5.2, Seller shall use its best efforts to accommodate any reasonable request by Buyer with respect to such action by alternative means.
Appears in 1 contract
Sources: Stock Purchase Agreement (Aetna Life & Casualty Co)
Access to Information. (a1) Sellers agree thatSubject to Section 9.5(2), upon reasonable notice, UDI shall (and shall cause each of its subsidiaries to) afford officers, employees, counsel, accountants and other authorized representatives and advisors ("REPRESENTATIVES") of SPX full access, from the date hereof and until the earlier of the Executory Contract Designation Deadline and Effective Date or the termination of this Agreement, Purchaser shall be entitledto its and its subsidiaries' properties, through its Representatives or otherwise, to have reasonable access to the executive officers books and Representatives of Sellers and the properties and other facilities, businesses, booksrecords, Contracts, personnelmanagement personnel and accountants (and use its commercially reasonable efforts to cause its accountants to provide full access to such accountants' work papers), records and, during such period, UDI shall (and operations (including the Purchased Assets shall cause each of its subsidiaries to) furnish promptly to SPX all information concerning UDI and Assumed Liabilities) of Sellers its subsidiaries and their Subsidiariesbusinesses, including access properties and personnel as SPX may reasonably request. Subject to systemsSection 9.5(2), dataupon reasonable notice, databases for benefit plan administration; provided howeverSPX shall (and shall cause each of its subsidiaries to) afford UDI's Representatives full access, that no such investigation from the date hereof and until the earlier of the Effective Date or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary termination of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which casethis Agreement, to the extent requested by Purchaserits and its subsidiaries' properties, Sellers will use reasonable best efforts books and records, Contracts, management personnel and accountants, and, during such period, SPX shall (and shall cause each of its subsidiaries to) furnish promptly to seek an amendment or appropriate waiverUDI all information concerning SPX and its subsidiaries and their businesses, or necessary consents, properties and personnel as UDI may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialreasonably request.
(b2) Any investigation Each of SPX and examination contemplated by this UDI acknowledges that certain information provided to it under Section 6.1 shall 9.5(1) above will be non-public and/or proprietary in nature and will be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality terms of the foregoingConfidentiality Agreement. For greater certainty, subject to Section 6.1(a)the provisions of the Confidentiality Agreement shall survive the termination of this Agreement, such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, the Confidentiality Agreement shall have terminate at the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, Effective Time notwithstanding anything to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contrary contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertytherein.
Appears in 1 contract
Sources: Merger Agreement (SPX Corp)
Access to Information. (a) Sellers agree thatPrior to the Closing Date, until the earlier Seller shall, shall cause each Plutux Group Company to, upon the Seller’s receipt of reasonable prior notice, provide to the Purchaser financial or other information (including non-public information) regarding the business and operation of any Plutux Group Company, including any information or statements as may be reasonably necessary for Purchaser (or any of its direct or indirect owners) to file any Tax Return or other filings required by Law. Prior to the Closing Date, at such times as may be agreed in advance with the Seller on behalf of Plutux, representatives of the Executory Contract Designation Deadline Purchaser may, during normal office hours, (a) visit and inspect any of the termination sites and premises where the business of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to any Plutux Group Company is conducted and (b) have reasonable access to the executive officers those officers, employees, agents, accountants, auditors, contractors and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary subcontractors of any Seller Plutux Group Company who have or any may have knowledge of their respective Representatives to disclose information subject to attorney-client privilege or in conflict matters with any confidentiality agreement respect to which any Seller, any Subsidiary the Purchaser reasonably seeks information. The Purchaser hereby acknowledges its obligations of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in confidentiality under Section 9.2 5.10 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateUpon the Purchaser’s reasonable request, the Seller shall, and shall cause their Subsidiaries and each of their respective Representatives Plutux to cooperate, reasonably cooperate with Purchaser and its Representatives in connection with such investigation and examinationthe Purchaser, and each provide the Purchaser with all information reasonably available to any Plutux Group Company, to permit the Purchaser to (i) accurately prepare its Tax Returns and comply with any reporting requirements as a result of such determination; (ii) determine whether any Plutux Group Company is or has been a “passive foreign investment company” for United States federal income tax purposes and to determine the consequences to Purchaser of such status; and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellersiii) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right make or cause to be present at made and maintain any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is all United States federal income tax elections that may be advisable in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to the Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each casereasonable discretion, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein extent related to the contrary, Purchaser shall consult with Sellers prior investment in Plutux pursuant to conducting any environmental investigations or examinations of any naturethis Agreement, including Phase I and Phase II site assessments and any environmental sampling in respect without limitation a “qualified electing fund” election under Section 1295 of the Transferred Real PropertyCode.
Appears in 1 contract
Sources: Share Purchase Agreement (The9 LTD)
Access to Information. Subject to Section 6.03, except as required pursuant to any confidentiality agreement or similar agreement or arrangement to which Parent or any of the Companies is a party or pursuant to applicable Law or Regulatory Rule, from the date of this Agreement until the Closing (or the earlier termination of this Agreement pursuant to Section 10.01), upon reasonable advance notice, Parent shall cause the Companies to: (a) Sellers agree thatafford the officers, until the earlier employees and authorized agents, accountants, counsel and representatives of the Executory Contract Designation Deadline and Purchaser (collectively, the termination of this Agreement"Purchaser Representatives") reasonable access, Purchaser shall be entitled, through its Representatives or otherwiseduring normal business hours, to have the offices, properties, personnel, other facilities and books and records of the Companies, (b) to use reasonable efforts to afford the Purchaser Representatives reasonable access to the executive officers and Representatives of Sellers and the properties employees, accountants, attorneys and other facilities, businesses, books, Contracts, personnel, records and operations (including consultants of the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted Companies who have any knowledge relating to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller Companies or any of their respective Representatives to disclose information subject to attorney-client privilege businesses or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound operations and (in which case, c) make available to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information regarding the assets, properties and goodwill of the Companies as the Purchaser or any of the Purchaser Representatives may from time to time reasonably request; provided, subjecthowever, that (i) the Companies shall not be required to waive any privilege which they may possess in each casedischarging the obligation pursuant to this Section 6.02, or (ii) the Purchaser and the Purchaser Representatives shall not, without the prior written consent of Parent, contact or communicate with any customer, employee, vendor or other business partner of the Companies, provided that Purchaser may engage in discussions with employees of the Companies but only in the presence of one or more of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or ▇▇▇▇▇▇▇▇ ▇▇▇▇. The Purchaser agrees that such investigation shall be conducted in such a manner so as to not interfere unreasonably with the operations of the Companies and that any information disclosed pursuant to this Section 6.02 shall be subject to the confidentiality restrictions outlined in this provisions of Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property6.03.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Rush Financial Technologies Inc)
Access to Information. From and after the Closing, the Buyer shall (aand shall cause the Company and each of its Subsidiaries and other Affiliates to), during normal business hours and upon reasonable notice, make available and provide the Seller and its respective representatives (including, without limitation, counsel and independent auditors) Sellers agree that, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable with access to the executive officers facilities and Representatives properties of Sellers the Company and each of its Subsidiaries and to all information, files, documents and records (written and computer) relating to the properties Company and its Subsidiaries or any of their businesses or operations for any and all periods prior to and including the Closing Date that they may require with respect to any reasonable business purpose (including, without limitation, any tax matter) or in connection with any claim, dispute, action, cause of action, investigation or proceeding of any kind by or against any Person, and shall (and shall cause the Company and each of its Subsidiaries and other facilities, businesses, books, Contracts, personnel, records Affiliates) cooperate fully with the Seller and operations its respective representatives (including counsel and independent auditors) in connection with the Purchased Assets foregoing, at the sole cost and Assumed Liabilitiesexpense of the Seller, including, without limitation, by making tax, accounting and financial personnel and other appropriate employees and officers of the Company and each of its Subsidiaries available to the Seller and its respective representatives (including counsel and independent auditors), with regard to any reasonable business purpose. Notwithstanding the foregoing, the Buyer shall not be required to (and shall not be required to cause the Company and each of its Subsidiaries and other Affiliates to) of Sellers grant access or furnish information to the Seller and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted its representatives to the extent that it wouldsuch access or disclosure would violate or prejudice the rights of its customers, in Sellers’ reasonable determinationwould jeopardize an attorney/client or attorney work product privilege, require any Seller, any Subsidiary or is prohibited by law or an existing contract or agreement. The Seller shall not have access to personnel records of any Seller the Company or any of their respective Representatives its Subsidiaries relating to disclose individual performance or evaluation records, medical histories or other information that in the Buyer’s good faith opinion is sensitive or the disclosure of which could subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller the Company or any of their respective Representatives are bound (in which caseits Subsidiaries to risk of liability; provided that the Seller shall not be prohibited from accessing such information pursuant to a valid court order. In addition, to the extent requested by Purchaser, Sellers will Seller shall use its reasonable best efforts to seek an amendment or appropriate waivercause its auditors, or necessary consentsat Buyer’s expense, as may be to furnish the Buyer and the Company and their financing sources all financial statements, pro forma financial statements and other financial data and financial information of the Company and its Subsidiaries, including all financial statements and financial and other data of the type required by Regulation S-X and Regulation S-K under the Securities Act for registered offerings of debt securities, and of the type and form customarily included in offering documents used in private placements under Rule 144A of the Securities Act (including pro forma financial information), and other documents required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closingsatisfy any customary negative assurance opinion, to the Chief Financial Officer of Parent or his designeeconsummate a financing, together with customary consents and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated comfort letters by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality auditors of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyCompany.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Zayo Group LLC)
Access to Information. (a) Sellers agree thatEach Seller shall give Buyer and its counsel, until the earlier of the Executory Contract Designation Deadline accountants, engineers, and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have other authorized representatives reasonable access to the executive officers Assets and Representatives of Sellers and the properties and to all other facilities, businesses, books, Contractsrecords, personneland documents relating to the Station for the purpose of audit and inspection, records and will furnish or cause to be furnished to Buyer or its authorized representatives all information with respect to the affairs and business of the Station that Buyer may reasonably request (including any financial reports and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted reports produced with respect to the extent that it wouldaffairs and business of the Station, in Sellers’ reasonable determination, require any Seller, any Subsidiary a list of any Seller or any all employees of the Station and a description of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requestedbase compensation); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a)Sellers shall give Buyer and its counsel, such investigation accountants, and examination shall include other authorized representatives reasonable access to Sellers’ executive officers (' financial records relating to the operations of the Station and employees the Station's employees, counsel, accountants, and other representatives for the purpose of preparing and auditing such financial statements as Buyer determines, in its reasonable judgment, are required or advisable to comply with federal or state securities laws and the rules and regulations of securities markets as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby. Sellers agree to provide financial statements concerning the operations of the Station, reviewed by Sellers' accountants, containing reasonably requested customary representations; provided, however, that the parties hereto agree that Buyer shall have no right under any circumstance to delay the Closing or terminate this Agreement on account of the information contained in any such financial statement or the inability of Sellers or their accountants in good faith to make any representation requested by Buyer. The preparation and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including auditing of any document retention policies of Sellers) and access financial statements pursuant to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser 5.8(b) shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I be at Buyees sole cost and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyexpense.
Appears in 1 contract
Sources: Asset Purchase Agreement (Paxson Communications Corp)
Access to Information. (a) Sellers agree thatFrom and after the date hereof, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a)Applicable Law, Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries and each of their respective Representatives its Affiliates to, (i) give to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with Buyer the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers Parties and their respective Subsidiaries identified by such executive officerscounsel, financial advisors, auditors and other Representatives reasonable access, during normal business hours, to the offices, properties, assets, books and records of Seller and its Affiliates (as it relates to the Business), offices(i) furnish to Buyer and its Affiliates and their respective counsel, properties financial advisors, auditors and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser such Persons may from time to time reasonably requestrequest (including any information necessary or useful in connection with any audit, subjectinvestigation, in each case, dispute or any other reasonable business purpose relating to the confidentiality restrictions outlined Business) and (i) use commercially reasonable efforts to cause the employees, counsel, financial advisors, auditors and other Representatives of Seller or any of its Affiliates to cooperate with Buyer in this Section 6.1. Notwithstanding anything contained herein its investigation of the Business; provided that Seller may restrict the foregoing access and disclosure to the contraryextent that such access or disclosure would (A) result in the loss of attorney-client privilege or other legal immunity or protection 48 from disclosure by Seller or (A) contravene any Applicable Law (except that, Purchaser shall consult with Sellers prior to conducting withholding any environmental investigations such access or examinations information pursuant to this proviso, Seller shall notify Buyer in writing of the nature of the information being withheld and take any actions as may reasonably be requested by Buyer to implement alternate arrangements (including entering into confidentiality agreements or joint defense agreements and redacting parts of documents or preparing “clean” summaries of information) in order to allow Buyer such access or information to the fullest extent reasonably practicable under the circumstances). Any investigation pursuant to this Section 5.02(a) shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business. No information or knowledge obtained by Buyer or any of its Affiliates or Representatives (including in any investigation pursuant to this Section 5.02(a)) shall affect or be deemed to modify any representation, warranty or agreement made by any Party hereunder.
(a) Except as set forth in Section 8.01 with respect to Tax records, Seller and each Affiliate thereof shall maintain the books and records retained by it and relating to the Business (to the extent originals or copies thereof have not been provided as part of the Purchased Assets) for at least seven years after which such party will have the right to destroy such books and records in its discretion, subject to the requirements of Applicable Law; provided that the applicable party shall give Buyer advance written notice of any nature, including Phase I such proposed destruction and Phase II site assessments shall provide Buyer with a reasonable opportunity to request and take delivery of any environmental sampling in respect of the Transferred Real Propertysuch books and records.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers agree thatshall, until and shall cause the earlier Acquired Companies to, at Buyer’s reasonable request for the purpose of preparing for Buyer’s operation of the Executory Contract Designation Deadline Acquired Companies and the termination of this AgreementBusiness following the Closing, Purchaser shall be entitled, through provide Buyer and its Representatives or otherwise, to have with reasonable access to (i) the executive officers properties, assets, books and Representatives records and data of the Acquired Companies and the Sellers, to the extent (A) relating to the Business and (B) separable from the properties, assets, books and records, documents and data relating to any other businesses of Sellers or any of their respective Affiliates; (ii) all senior management of the Business; and (iii) any other information (other than information of the properties and other facilities, businesses, books, Contracts, personnel, records and operations types set forth in subsection (including the Purchased Assets and Assumed Liabilitiesi) of this Section 5.2(a)) concerning the Acquired Companies or the Business as Buyer or any of its Representatives may reasonably request, in each case, without imposing an unreasonable burden or cost on Sellers or any of the Acquired Companies. All access and investigation pursuant to this Section 5.2(a) shall be (A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, the Business or any other business of the Sellers and their Subsidiariesrespective Affiliates, including access (C) coordinated through Sellers’ general counsel or designee thereof, and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to systemshave one or more of its Representatives present at all times during any visits, dataexaminations, databases for benefit plan administrationdiscussions or contacts contemplated by this Section 5.2(a); provided provided, however, that no such investigation the Representatives of Buyer execute a non-disclosure agreement agreeing to be bound by the terms of the Confidentiality Agreement or examination shall be permitted any other Contract required to ensure Sellers’, Buyer’s and each of their respective Affiliates’ compliance with applicable Privacy Laws. Notwithstanding anything to the extent that it contrary contained herein, during the Pre-Closing Period, Sellers shall not be required to (x) provide or make available to Buyer or its employees, agents or representatives any consolidated, combined or unitary Tax Return filed by Sellers or any of their respective Affiliates or predecessors or any related material or (y) provide access or disclose information where such access or disclosure would, in Sellers’ reasonable determinationjudgment, require (1) jeopardize the attorney-client privilege or other immunity or protection from disclosure of Sellers, (2) conflict with any Seller, any Subsidiary of any Seller (x) Law or Order applicable to Sellers or any of their respective Representatives to disclose information subject to attorney-client privilege Affiliates (including any applicable Privacy Law) or in conflict with any confidentiality agreement the assets or operation of the Business, (y) Contract or privacy policy or notice to which any Seller, any Subsidiary of any Seller Sellers or any of their respective Representatives are bound Affiliates is party or by which any of the assets or properties of Sellers is bound, or (z) other obligation of confidentiality, or (3) result in which casethe disclosure of competitively sensitive information; provided, to the extent requested by Purchaserhowever, that, in such instances, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to Buyer of the general nature of what is the information being withheld and, upon Buyer’s request and at Buyer’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the reason outcomes described in the foregoing clauses (1), (2) and (3). Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent may be withheld for withholding such materialany reason), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any vendor, supplier or customer of the Business regarding the business, operations, or prospects of the Business or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of the Business (including, without limitation, any of the nature commonly referred to as a “Phase II” environmental assessment).
(b) Any investigation and examination contemplated by this Buyer will hold any information obtained pursuant to Section 6.1 shall be subject to restrictions set forth 5.2(a) in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives confidence in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere accordance with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyConfidentiality Agreement.
Appears in 1 contract
Access to Information. (a) Sellers agree that, until Between the earlier date of the Executory Contract Designation Deadline this Agreement and the termination of this AgreementClosing Date, Purchaser shall be entitledthe Seller will, through its during ordinary business hours and upon reasonable notice (i) give the Buyer and the Buyer Representatives or otherwise, to have reasonable access to the executive officers its managerial personnel and Representatives of Sellers and the properties to all books, records, plants, offices and other facilities, businesses, books, Contracts, personnel, records facilities and operations (including properties constituting the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound the Buyer is permitted access by law; (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to ii) permit the access requested)Buyer to make such reasonable inspections thereof as the Buyer may reasonably request; provided further, that notwithstanding (iii) furnish the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection Buyer with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the Assets in the possession of Seller as Purchaser the Buyer may from time to time reasonably request; (iv) furnish the Buyer a copy of each material report, subject, in each case, schedule or other document filed or received by Seller or any of Seller's Affiliates with respect to the confidentiality restrictions outlined Assets with the SEC, MDTE, or FERC; provided, however, that (A) any such investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the Assets, (B) the Seller shall not be required to take any action which would constitute a waiver of the attorney/client privilege and (C) the Seller need not supply the Buyer with any information which the Seller is under a legal obligation not to supply; and (v) give the Buyer access to the environmental reports identified in Schedule 5.11 and Operating Permits and other permits and licenses for the Assets. Notwithstanding anything in this Section 6.1. Notwithstanding anything contained herein 7.2 to the contrary, Purchaser (i) the Seller will only furnish or provide such access to personnel and medical records as is required by law, and (ii) the Buyer shall consult with Sellers prior not have the right to conducting any environmental investigations perform or examinations of any nature, including Phase I and Phase II site assessments and conduct any environmental sampling in respect or testing at, in, on, or underneath the Assets without the approval of the Transferred Real PropertySeller.
(b) All information furnished to or obtained by the Buyer and the Buyer Representatives pursuant to this Section 7.2 shall be subject to the provisions of the Confidentiality Agreement and shall be treated as "Proprietary Information" (as defined in the Confidenti- ality Agreement).
(c) For a period of ten years after the Closing Date, the Seller and its representatives shall have reasonable access to all of the books and records related to the Assets transferred to the Buyer hereunder to the extent that such access may reasonably be required by the Seller in connection with matters relating to or affected by the operation of the Assets prior to the Closing Date; provided, however, that Seller shall first enter into a definitive confidentiality agreement with the Buyer with respect thereto on such terms and conditions as the Buyer may reasonably require. Such access shall be afforded by the Buyer upon receipt of reasonable advance notice and during normal business hours. The Seller shall be solely responsible for any costs or expenses incurred by it pursuant to this Section 7.2(c). If the Buyer shall desire to dispose of any such books and records prior to the expiration of such ten-year period, the Buyer shall, prior to such disposition, give the Seller a reasonable opportunity at the Seller's expense, to segregate and remove such books and records as the Seller may select.
Appears in 1 contract
Access to Information. (a1) Sellers agree thatSubject to Section 4.6(2) and applicable Laws, upon reasonable notice, Sunrise REIT shall (and shall cause each of its Subsidiaries to) afford to the Purchasers and their officers, employees, counsel, accountants and other authorized representatives and advisors (including, for greater certainty, any investment banker, lawyer or accountant) (collectively, “Representatives”) access, during normal business hours from the date hereof and until the earlier of the Executory Contract Designation Deadline and Closing or the termination of this Agreement, Purchaser to its and its Subsidiaries’ properties, Books and Records and contracts as well as to its management personnel (and to its property managers and their personnel, who shall be entitled, through its Representatives or otherwise, instructed to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorneyco-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(aoperate), Seller and, during such period, Sunrise REIT shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their each of its Subsidiaries and each of their respective Representatives property managers to) furnish promptly to cooperate, with Purchaser the Purchasers all information concerning it and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), officesbusinesses, properties and other facilitiespersonnel as the Purchaser may reasonably request. The Purchasers, and booksupon reasonable notice to Sunrise REIT, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of at their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicableexpense, shall also have the right to prepare or cause to be present at prepared surveys, inspections, engineering studies, environmental assessments and other tests, examination or studies with respect to the Company Properties; provided, that the Purchasers indemnify Sunrise REIT for any meeting between any losses, costs or damages caused by such accountant access and Purchaser or Representative so long as such access does not unduly interfere with the ordinary conduct of Purchaser, whether such meeting is business.
(2) Each of the Purchasers acknowledges that the information provided to it under Section 4.4 and Section 4.6(1) above will be non-public and/or proprietary in person, telephonic or otherwisenature (the “Confidential Information”) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, will be subject to the confidentiality restrictions outlined in terms of the Confidentiality Agreement. For greater certainty, the provisions of the Confidentiality Agreement shall survive the termination of this Agreement, provided that the obligations of the Purchasers under the Confidentiality Agreement and Section 6.1. Notwithstanding 4.6(1) shall terminate following the Closing Date, notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations contrary contained therein or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyherein.
Appears in 1 contract
Sources: Purchase Agreement (Ventas Inc)
Access to Information. (a) Sellers agree thatTarget shall afford Acquiror and its accountants, counsel and other representatives, reasonable access during normal business hours upon reasonable notice during the period prior to the earlier of the termination of this Agreement in accordance with Section 7 hereof or the Effective Time to (i) all of Target's properties, books, contracts, commitments and records, and (ii) all other information concerning the business, properties and personnel of Target as Acquiror may reasonably request provided that such access shall not unduly disrupt the Target's normal business activities. Target agrees to provide to Acquiror and its accountants, counsel and other representatives copies of internal financial statements promptly upon request. Acquiror shall afford Target and its accountants, counsel and other representatives, reasonable access during normal business hours upon reasonable notice during the period prior to the earlier of the termination of this Agreement in accordance with Section 7 hereof or the Effective Time to (i) all of Acquiror's and its subsidiaries' properties, books, contracts, commitments and records, and (ii) all other information concerning the business, properties and personnel of Acquiror and its subsidiaries as Target may reasonably request provided that such access shall not unduly disrupt Acquiror's normal business activities. Acquiror agrees to provide to Target and its accountants, counsel and other representatives copies of internal financial statements promptly upon request.
(b) Subject to compliance with applicable law, from the date hereof until the earlier of the Executory Contract Designation Deadline and the termination of this AgreementAgreement in accordance with Section 7 hereof or the Effective Time, Purchaser each of Acquiror and Target shall be entitled, through its Representatives confer on a regular and frequent basis with one or otherwise, more representatives of the other party to have reasonable access to the executive officers and Representatives report operational matters of Sellers materiality and the properties and other facilities, businesses, books, Contracts, personnel, records and operations general status of ongoing operations.
(including the Purchased Assets and Assumed Liabilitiesc) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such No information or knowledge obtained in any investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller 5.3 shall inform Purchaser in writing as affect or be deemed to modify any representation or warranty contained herein or the conditions to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality obligations of the foregoing, subject parties to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have consummate the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyStep One Merger.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (PDF Solutions Inc)
Access to Information. (a) Sellers agree thatSubject to Section 5.03(b), from the date of this Agreement until the earlier of Closing, upon reasonable notice and during normal business hours, and subject to Applicable Law, the Executory Contract Designation Deadline Sellers shall and the termination of this Agreement, shall cause each Acquired Company to (i) give Purchaser shall be entitled, through and its Representatives or otherwise, to have reasonable access to the executive officers offices, properties, books and Representatives records of Sellers and the properties and other facilitiesAcquired Companies, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilitiesii) of Sellers and their Subsidiaries, including access furnish to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information relating to the Acquired Companies as Purchaser such Persons may from time to time reasonably request, subjectin the same form provided to Purchaser during its due diligence review, provided, that the Sellers need not provide financial and operating data any earlier than such information would otherwise be available in the ordinary course of business consistent with past practice, and (iii) instruct the Representatives of the Acquired Companies to cooperate with Purchaser in its investigation of the Acquired Companies. Any investigation pursuant to this Section 5.03(a) shall be conducted in such manner as not to be disruptive or interfere unreasonably with the conduct of the business of the Acquired Companies. Prior to the Closing, with the prior written consent of the Sellers, which shall not be unreasonably withheld, conditioned or delayed, (A) Purchaser may contact any Suppliers to, or customers of, the Acquired Companies, and (B) Purchaser shall have the right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies. All information provided to Purchaser and its Affiliates and Representatives pursuant to this Agreement shall be considered confidential.
(b) The Sellers may (i) withhold from Purchaser any Contracts entered into after the date hereof and which the Sellers provide notice to Purchaser of the fact that such Contracts cannot be provided to Purchaser under Applicable Law, or (ii) prohibit any investigation or examination under Section 5.03(a), where, in each casethe case of clause (ii), the Sellers have determined, in its reasonable judgment and on the advice of outside legal counsel, that doing so would (A) violate Applicable Law, (B) breach a Contract or obligation of confidentiality owing to a third party, or (C) constitute a waiver of attorney-client privilege, it is agreed that the confidentiality restrictions outlined Sellers shall give notice to Purchaser of the fact that it is withholding such Contracts or information, and thereafter the Sellers and Purchaser shall, if permissible, reasonably cooperate (including by entering into a joint defense or similar agreement) to cause such information or documents to be provided in this Section 6.1a manner that would not reasonably be expected to waive the applicable privilege or protection or violate the applicable restriction. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior not have access to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect personnel records of the Transferred Real PropertyAcquired Companies relating to individual performance or evaluation records, medical histories or other information, the disclosure of which would result in the violation of Applicable Law.
Appears in 1 contract
Sources: Share Purchase Agreement (Esports Entertainment Group, Inc.)
Access to Information. For a period of twenty-four (a24) Sellers agree thatmonths after the Closing Date (the "Transition Period"), until the earlier of the Executory Contract Designation Deadline each Party and the termination of this Agreement, Purchaser their representatives shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examinationto, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to photocopy, all of the Books and Records relating to the Acquired Product Lines or the Acquired Assets, including all employee records or other personnel and medical records required by law, legal process or subpoena, in the possession of the other party to the extent that such access may reasonably be present required by such Party in connection with the Assumed Obligations or the Unassumed Liabilities, or other matters relating to or affected by the operation of the Acquired Product Lines and the Acquired Assets. During the Transition Period, and only to the extent that the Buyer's operation of the Acquired Assets is not interrupted in any material respect, the Buyer agrees to provide the Debtors, during ordinary business hours and upon reasonable notice and at any meeting between Debtor's request, with reasonable access to employees of the Buyer and/or the Asset Buyer(s) for purposes of winding down the estates of the Debtors. Such access shall be afforded by the party in possession of such Books and Records upon receipt of reasonable advance notice and during normal business hours; provided, however, that (A) any such accountant investigation shall be conducted in such a manner as not to interfere unreasonably with the operation of the business of any party or its affiliates, (B) no party shall be required to take any action which would constitute a waiver of the attorney-client privilege and Purchaser (C) no party need supply the other party with any information which such party is under a legal obligation not to supply. The party exercising this right of access shall be solely responsible for any costs or Representative expenses incurred by it pursuant to this Section 8.6. If the party in possession of Purchasersuch Books and Records shall desire to dispose of any such Books and Records upon or prior to the expiration of such period, whether such meeting is in personparty shall, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish prior to Purchaser’s Representatives such additional financial and operating data and disposition, give the other information as Purchaser may from time to time reasonably request, subject, in each caseparty a reasonable opportunity at such other party's expense, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I segregate and Phase II site assessments remove such Books and any environmental sampling in respect of the Transferred Real PropertyRecords as such other party may select.
Appears in 1 contract
Access to Information. (a) Sellers agree thatUpon reasonable notice, until the earlier Company shall (and shall cause each of its Subsidiaries to) afford to officers, employees, counsel, accountants and other authorized representatives of Parent ("Parent Representatives"), in order to evaluate the Executory Contract Designation Deadline and the termination of transactions contemplated by this Agreement, Purchaser shall be entitledreasonable access, through its Representatives or otherwiseduring normal business hours and upon reasonable advance notice throughout the period prior to the Effective Time, to have reasonable access its officers, employees, accountants, consultants, representatives, plants, properties, contracts, commitments, books and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish or make available reasonably promptly to the executive officers and such Parent Representatives of Sellers and the all information concerning its business, properties and other facilities, businesses, books, Contracts, personnel, records and operations personnel as may reasonably be requested (including the Purchased Assets financial and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, operating data, databases customer billing and other data files for benefit plan administrationthe purpose of system integration and testing as well as compensation and payroll data files for the purpose of payroll system integration and testing with respect to employees of the Company and its Subsidiaries); provided provided, however, that no any such investigation or examination access shall be permitted to conducted under the extent supervision of personnel of the Company and in a manner that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary does not materially interfere with the normal operations of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialCompany.
(b) Any investigation and examination contemplated by this Section 6.1 Parent agrees that it shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperatenot, and shall cause their Subsidiaries and the Parent Representatives not to, use any information obtained pursuant to this Section 7.5 for any purpose unrelated to the consummation of the transactions contemplated by this Agreement.
(c) Notwithstanding anything to the contrary set forth herein, nothing in this Section 7.5 shall require the Company to disclose any information that, after consultation with legal counsel, the Company concludes in good faith, (i) it is not legally permitted to disclose or the disclosure of which would contravene any applicable Law or binding order, (ii) the disclosure of which would jeopardize any attorney-client or other legal privilege, (iii) the disclosure of which would conflict with, violate or cause a default under any existing contract or agreement to which it is a party, or (iv) constitutes any competitively sensitive information or trade secrets of third parties; provided, that, in each of their respective Representatives the foregoing cases, the parties hereto shall cooperate in seeking to cooperatefind a way to allow disclosure of such information to the extent doing so would not (in the good faith belief of the Company, after consultation with Purchaser legal counsel) reasonably be likely to result in the violation of any such Law, contract or agreement or reasonably be likely to cause such privilege or competitively sensitive information to be undermined or compromised with respect to such information; provided, further, that the Company shall (x) notify Parent that such disclosures are reasonably likely to violate the Company's or any of its Affiliates' obligations under any such Law, contract or agreement or are reasonably likely to cause such privilege or competitively sensitive information to be undermined or compromised, (y) communicate to Parent in reasonable detail (A) the facts giving rise to such notification, and (B) the subject matter of such information (in each case, only to the extent it is permitted to do so without resulting in the violation of any such Law, contract or agreement or reasonably be likely to cause such privilege or competitively sensitive information to be undermined or compromised with respect to such information), and (z) in the case where such disclosures are reasonably likely to violate the Company's or its Representatives Affiliates' obligations under any contract or agreement, use commercially reasonable efforts to seek consent from the applicable third party to any such contract or agreement with respect to the disclosures prohibited thereby. If any of the information or material furnished pursuant to this Section 7.5 includes materials or information subject to the attorney-client privilege, work product doctrine or any other applicable privilege concerning pending or threatened legal proceedings or governmental investigations, each party understands and agrees that the parties have a commonality of interest with respect to such matters and it is the desire, intention and mutual understanding of the parties that the sharing of such material or information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information or its continued protection under the attorney-client privilege, work product doctrine or other applicable privilege. All such information provided by the Company that is entitled to protection under the attorney-client privilege, work product doctrine or other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.
(d) No information received pursuant to an investigation made under this Section 7.5 shall be deemed to (i) qualify, modify, amend or otherwise affect any representations, warranties, covenants or other agreements of the Company set forth in this Agreement or any certificate or other instrument delivered to Parent and Merger Sub in connection with such investigation and examinationthe transactions contemplated hereby, and each (ii) amend or otherwise supplement the information set forth in the Company Disclosure Letter, (iii) limit or restrict the remedies available to the parties under applicable Law arising out of Purchaser and its Representatives shall use their reasonable best efforts a breach of this Agreement, or (iv) limit or restrict the ability of either party to not materially interfere with invoke or rely on the business of Sellers and their Subsidiaries. Without limiting conditions to the generality obligations of the foregoingparties to consummate the transactions contemplated by this Agreement set forth in Article VIII hereof.
(e) The Confidentiality Agreement, dated September 15, 2010 (the "Confidentiality Agreement"), by and between the Company and Veritas Capital Fund Management, L.L.C. shall, subject to Section 6.1(a)7.2 of this Agreement, such investigation continue to apply with respect to information furnished by the Company, its Subsidiaries and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive the Company's officers), officesemployees, properties counsel, accountants and other facilitiesauthorized representatives hereunder; provided that, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have notwithstanding the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect terms of the Transferred Real PropertyConfidentiality Agreement, Parent may provide such information to potential sources of capital and to rating agencies and prospective lenders and investors during the syndication and/or marketing of the Financing, subject to customary confidentiality agreements or acknowledgments with respect to such persons regarding such information.
(f) For the avoidance of doubt, the disclosure of information with respect to an Acquisition Proposal shall be exclusively governed by the provisions of Section 7.2.
Appears in 1 contract
Access to Information. (a) Sellers agree thatSubject to Section 5.04(b), from the date of this Agreement until the earlier of the Executory Contract Designation Deadline Closing, upon reasonable notice and the termination of this Agreementduring normal business hours, and subject to Applicable Law, Seller shall and shall cause each Acquired Company to (i) give Purchaser shall be entitled, through and its Representatives or otherwise, to have reasonable access to the executive officers offices, properties, books and Representatives records of Sellers and the properties and other facilitiesAcquired Companies, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilitiesii) of Sellers and their Subsidiaries, including access furnish to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information relating to the Acquired Companies as Purchaser such Persons may from time to time reasonably request, subjectin the same form provided to Purchaser during its due diligence review, provided, that Seller need not provide financial and operating data any earlier than such information would otherwise be available in the ordinary course of business consistent with past practice, and (iii) instruct the Representatives of the Acquired Companies to cooperate with Purchaser in its investigation of the Acquired Companies. Any investigation pursuant to this Section 5.04(a) shall be conducted in such manner as not to be disruptive or interfere unreasonably with the conduct of the business of the Acquired Companies. Prior to the Closing, with the prior written consent of Seller, which shall not be unreasonably withheld, conditioned or delayed, (A) Purchaser may contact any suppliers to, or customers of, the Acquired Companies, and (B) Purchaser shall have the right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies. All information provided to Purchaser and its Affiliates and Representatives pursuant to this Agreement shall be considered confidential and be subject to the terms of the Confidentiality Agreement.
(b) Seller may (i) withhold from Purchaser (x) any Contracts identified in Section 3.09(a)(xix) of the Disclosure Schedule or portions thereof, or (y) any Contracts entered into after the date hereof and which Seller provides notice to Purchaser of the fact that such Contracts cannot be provided to Purchaser under Applicable Law, or (ii) prohibit any investigation or examination under Section 5.04(a), where, in each casethe case of clause (ii), Seller has determined, in its reasonable judgment and on the advice of outside legal counsel, that doing so would (A) violate Applicable Law, (B) breach a Contract or obligation of confidentiality owing to a third party, or (C) constitute a waiver of attorney-client privilege, it is agreed that Seller shall give notice to Purchaser of the confidentiality restrictions outlined fact that it is withholding such Contracts or information, and thereafter Seller and Purchaser shall, if permissible, reasonably cooperate (including by entering into a joint defense or similar agreement) to cause such information or documents to be provided in this Section 6.1a manner that would not reasonably be expected to waive the applicable privilege or protection or violate the applicable restriction. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior not have access to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect personnel records of the Transferred Real PropertyAcquired Companies relating to individual performance or evaluation records, medical histories or other information, the disclosure of which would result in the violation of Applicable Law.
Appears in 1 contract
Access to Information. The officers, employees and authorized representatives of Buyer (aincluding, without limitation, independent public accountants and attorneys) Sellers agree thatshall have reasonable access, until during normal business hours and upon reasonable advance notice, to the earlier offices, properties, employees and business and financial records of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which caseCompany, to the extent Buyer shall reasonably deem necessary or desirable and the Company shall furnish to Buyer or its authorized representatives such additional information concerning the Company as shall be reasonably requested and shall reasonably promptly respond to reasonable inquiries by PurchaserSeller; provided, Sellers will use reasonable best efforts to seek an amendment or appropriate waiverhowever, or necessary consents, as may that the Seller shall not be required to avoid such conflict, or restructure the form violate any obligation of access, so as confidentiality to permit the access requested); provided further, that notwithstanding the notice provisions which it is subject in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld discharging its obligations pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material5.
(b) Any 1. Buyer agrees that such investigation and shall be conducted in such a manner as not to interfere unreasonably with the operations of the Seller. No such access, examination contemplated by or review shall in any way affect, diminish, terminate or mitigate any of the representations, warranties or covenants of Seller set forth herein. If in the course of any investigation pursuant to this Section 6.1 shall be subject to restrictions set forth 5.1 the Buyer's officers, employees or authorized representatives discover any breach of any representation or warranty contained in Section 6.24 and under applicable Law. Sellers shall cooperatethis Agreement that is not immaterial, and shall cause their Subsidiaries and each of their respective Representatives to cooperateor any circumstance or condition that upon Closing would constitute such a breach, with Purchaser and Buyer covenants that it will use its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to promptly inform Seller in writing; provided, the failure by Buyer to so inform Seller shall not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingin any way affect, subject to Section 6.1(a)diminish, terminate or mitigate Seller's liability for such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.breach..
Appears in 1 contract
Sources: Stock Purchase Agreement (Flowers Industries Inc /Ga)
Access to Information. (a) Sellers agree thatDuring the Interim Period, until the earlier of Seller shall, and shall cause the Executory Contract Designation Deadline Company Entities to, (i) provide the Buyer and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable with access to the executive officers offices and Representatives properties, and to copies of Sellers books and records, of the properties and other facilitiesCompany Entities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilitiesii) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted furnish to the extent Buyer and its Representatives such financial and operating data and any other information relating to the business of the Company Entities that it wouldis produced in the ordinary course of business as such Persons may reasonably request, (iii) instruct the employees, counsel and financial advisors of the Company Entities to cooperate with the Buyer in its investigation of the business of the Company Entities, and (iv) provide the Buyer and/or any Representative thereof a reasonable opportunity to participate in any correspondence or other communications, whether written or oral, with any customer or supplier of any Company Entity specified by the Buyer, in Sellers’ reasonable determinationeach case, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose other than information subject to that is protected by attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any (provided that the Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will shall use reasonable best efforts to seek an amendment provide such information (or appropriate waiver, or necessary consents, as may be required to avoid portion thereof) in a manner that does not jeopardize such conflict, or restructure the form of access, so as to permit the access requestedprivilege); provided furtherprovided, however, that notwithstanding such access and investigation (A) shall be conducted at the Buyer’s expense, upon reasonable advance notice provisions in Section 9.2 hereofto the Seller, during normal business hours, (B) does not unreasonably disrupt the normal operations of any Company Entity and (C) shall comply with all such applicable Laws. All requests by the Buyer for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), 5.1(a) shall be submitted or directed exclusively to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or such other individual(s) as the Seller shall inform Purchaser may designate in writing as from time to time. Notwithstanding anything to the general nature contrary contained herein, the Buyer shall not perform invasive or subsurface investigations of what is being withheld and the reason for withholding such materialLeased Real Property prior to the Closing without the prior written consent of the Seller.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateAfter the Closing, the Buyer will, and shall will cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation to, afford to the Seller, including its Representatives, at the Seller’s sole cost and examinationexpense, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers the books, records, files and documents of, or relating to, the Company Entities and in order to permit the Seller to prepare for and participate in any investigation and defend any Proceedings relating to or involving the Seller (and employees of Sellers and their respective Subsidiaries identified by such executive officersbut not relating to any dispute under this Agreement), offices, properties and other facilitiesto discharge its obligations under this Agreement, and booksto comply with financial and Tax reporting requirements, Contracts and will afford the Seller, at the Seller’s sole cost and expense, reasonable assistance in connection therewith. The Buyer will cause such records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may maintained for not less than six years from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyClosing Date.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Remark Holdings, Inc.)
Access to Information. (a) Sellers agree thatSeller shall, until the earlier and shall cause each other member of the Executory Contract Designation Deadline Seller Group to, afford to Purchaser and the termination of this Agreementto Purchaser’s officers, Purchaser shall be entitledemployees and Representatives, through its Representatives or otherwise, to have reasonable access during normal business hours during the period prior to Closing to all of the executive officers and Representatives of Sellers and the properties and other facilities, businessesCompany’s properties, books, Contracts, personnelcommitments, personnel and records and operations (including IT systems personnel in order to commence the Purchased Assets IT migration process) and, during such period, Seller shall, and Assumed Liabilities) shall cause each other member of Sellers the Seller Group to, furnish promptly to Purchaser all information in its possession or control concerning the Company’s Business, properties and their Subsidiariespersonnel as Purchaser may reasonably request; provided, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation Seller may withhold, and may cause any other member of the Seller Group to withhold, (i) any document or examination shall be permitted information that is subject to the extent terms of a confidentiality agreement with a third party, (ii) such portions of documents or information relating to pricing or other matters that it wouldare highly sensitive if the exchange of such documents (or portions thereof) or information, as determined by Seller’s outside counsel, could reasonably be expected to result in Sellers’ reasonable determination, require any Seller, any Subsidiary of any antitrust difficulties for Seller or its Affiliates or (iii) any of their respective Representatives document or information, if access or disclosure thereto, as determined by Seller’s outside counsel, could reasonably be expected to disclose information subject to jeopardize the attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary attorney work-product protection of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested)its Affiliates; provided further, that notwithstanding the notice provisions in Section 9.2 hereofsuch access does not include any right to conduct any intrusive or invasive sampling or testing, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent including any Phase II environmental site assessment or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designeeinvestigation. If any material is withheld by Seller pursuant to this Section 6.1(a)the first proviso in the immediately preceding sentence, Seller shall inform Purchaser in writing as to the general nature of what the material that is being withheld withheld. All information provided by Seller pursuant to this Section 7.01(a) shall be subject to the provisions of the non-disclosure agreement dated June 20, 2016 (the “Non-Disclosure Agreement”), as amended by the letter agreement dated November 6, 2017, between Seller and the reason for withholding such materialPBF Holding Company LLC.
(b) Any investigation For a period of six years after the Closing, Purchaser shall afford and examination contemplated by this Section 6.1 shall be subject cause its Affiliates to restrictions set forth afford to Seller and its Representatives reasonable access, during normal business hours and upon reasonable notice, to the personnel, properties, books and records of the Company for periods prior to the Closing Date in Section 6.24 connection with (i) the preparation of Tax Returns, audited financial statements, regulatory filings or for other similar bona fide business and under applicable Lawcompliance purposes which affect Seller or its Affiliates, (ii) compliance with the requirements of any Law or Governmental Authority or (iii) any actual or threatened Action involving Seller or its Affiliates in respect of Third Parties and/or Governmental Authorities; provided, that Purchaser is not obligated to provide any information or documents the disclosure of which would jeopardize any attorney–client or other privilege available to Purchaser, the Company or its Affiliates. Sellers shall cooperateIn connection with receiving such access and information, Seller shall, and shall cause their Subsidiaries its Affiliates and each of their respective Representatives to cooperateto, cooperate with Purchaser and its Affiliates to ensure that such access does not unreasonably interfere with the normal operations of the businesses conducted by Purchaser or its Affiliates or with their respective employee relations. Seller shall promptly reimburse Purchaser and its Affiliates for reasonable, documented out-of-pocket fees, costs or expenses (including reasonable fees, costs and expenses of outside counsel, accountants and other advisors) incurred in connection with such access.
(c) For a period of six years after the Closing, Seller shall afford and shall cause its Affiliates to afford to Purchaser, the Company and their respective authorized Representatives, during normal business hours, reasonable access to any books and records relating the Company in its, its Affiliates’, or its Representatives’ possession with respect to periods prior to the Closing Date and allow such persons to make copies and extracts therefrom, to the extent that such access may be reasonably required by Purchaser, the Company and their respective Representatives in connection with (i) the preparation of Tax Returns, audited financial statements, regulatory filings or for other similar bona fide business and compliance purposes which affect Purchaser, the Company or their respective Affiliates, (ii) compliance with the requirements of any Law or Governmental Authority or (iii) any actual or threatened Action in respect of Third Parties and/or Governmental Authorities relating to the Company; provided, that Seller is not obligated to provide any information or documents the disclosure of which would jeopardize any attorney–client or other privilege available to Seller or its Affiliates. In connection with receiving such investigation access and examinationinformation, Purchaser shall, and each shall cause its Affiliates and Representatives to, cooperate with Seller and its Affiliates to ensure that such access does not unreasonably interfere with the normal operations of the businesses conducted by Seller or its Affiliates or with their respective employee relations. Purchaser shall promptly reimburse Seller and its Affiliates for reasonable, documented out-of-pocket fees, costs or expenses (including reasonable fees, costs and expenses of outside counsel, accountants and other advisors) incurred in connection with such access.
(d) Except as required by applicable Law or legal process, for a period of two years from and after the Closing, Seller shall, and shall cause its Affiliates and its and their respective Representatives to, hold in confidence any and all non-public information, whether written or oral, to the extent relating to the conduct of the Company’s Business and the assets and liabilities of the Company (“Business Information”), except to the extent that such information (i) is or becomes generally available to the public other than through an action or failure to act by Seller, any of its Affiliates or its or their respective Representatives in breach of the terms of this Agreement, (ii) is lawfully acquired by Seller, any of its Affiliates or its or their respective Representatives from and after the Closing from sources other than Purchaser and its Affiliates that are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation or (iii) was independently developed by Seller, its Affiliates or its or their respective Representatives without reference to or use of Business Information. Except as required by applicable Law or legal process and except in connection with Seller’s exercise of its rights under this Agreement, Seller shall not, and shall cause its Affiliates and its and their Representatives not to, directly or indirectly, reproduce, distribute, divulge, disclose or otherwise disseminate such information, other than to Purchaser and its Representatives shall use their reasonable best efforts or such Representatives of Seller who need to not materially interfere with know such information for the business preparation of Sellers and their Subsidiaries. Without limiting the generality of the foregoingTax Returns, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties financial statements and other facilities, documents and books, Contracts and records reports that Seller or its Affiliates (including any document retention policies of Sellersthe LG Group) and access are required to accountants of Sellers and each of their respective Subsidiaries file with Governmental Authorities (provided that Sellers and each such Representatives of their respective Subsidiaries, as applicable, shall have the right Seller agree to be present at any meeting between any keep such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyconfidential).
Appears in 1 contract
Access to Information. (a) Sellers agree thatSubject to Section 5.4 and Law, until prior to the earlier of the Executory Contract Designation Deadline and the Closing Date or termination of this AgreementAgreement pursuant to Article VII, Purchaser upon reasonable prior notice, Seller shall be entitledcause its officers, managers, directors, employees, auditors and other agents to afford the officers, managers, directors, employees, auditors, advisors and other agents (collectively, “Representatives”) of Buyer reasonable access during normal business hours to the Representatives, properties, offices and other facilities of Seller and its Affiliates (in respect of the Business), and its and its Affiliates’ respective books and records (solely to the extent in respect of the Business), and shall furnish Buyer with such existing financial, operating and other data and information solely to the extent related to the Business, as Buyer, through its Representatives, may reasonably request (in each case, other than any Form I-9 and any Personnel File of any Business Employee). In exercising its rights hereunder, Buyer shall, and shall cause its Representatives to, conduct itself and themselves so as not to interfere in the conduct of the Business or otherwise, to have reasonable access the other businesses of Seller or its Affiliates prior to the executive officers Closing. Buyer acknowledges and agrees that any contact by Buyer, its Affiliates and/or their Representatives with Representatives of Sellers Seller or its Affiliates hereunder shall be arranged and supervised by Representatives of Seller, unless Seller otherwise expressly consents in writing with respect to any specific contact. Notwithstanding anything to the properties and other facilitiescontrary set forth in this Agreement, businessesneither Seller nor any of its Affiliates shall be required to disclose to Buyer, booksits Affiliates or any Representative thereof any (i) information, Contractsif doing so (A) in Seller’s good faith determination, personnelwould reasonably be expected to violate any Law or obligation of confidentiality owed by Seller or its Affiliates to a Third Party, records and operations or any fiduciary obligation, (B) could reasonably be expected to result in a loss of the ability to successfully assert a claim of privilege (including the Purchased Assets attorney-client and Assumed Liabilitieswork product privileges) in the good faith opinion of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or its Affiliates, as applicable, (C) would result in conflict with any confidentiality agreement to which any Seller, any Subsidiary the disclosure of any competitively sensitive information unrelated to the Business of Seller or any of their respective Representatives are bound its Affiliates or (D) would result in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form disclosure of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions information set forth in Section 6.24 and under applicable 2.2(s) of the Seller Disclosure Letter; provided that Seller shall use commercially reasonable efforts to obtain waivers or make other arrangements (including redacting information or making substitute disclosure arrangements) that would enable disclosure to Buyer or its Representatives to occur without contravening such Law. Sellers shall cooperate, obligation of confidentiality, or fiduciary obligation, disclosing such competitively sensitive information unrelated to the Business, or jeopardizing such privilege, and shall cause their Subsidiaries and each (ii) Tax Return that includes Seller or any of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including Affiliates or any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyTax-related work papers.
Appears in 1 contract
Access to Information. (a) Sellers agree that, From the date hereof until the earlier Closing, Seller shall (a) afford Buyers and their Representatives full and free access to and the right to inspect all of the Executory Contract Designation Deadline Purchased Assets, and the termination of this Agreementany Books and Records, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access Contracts and other documents and data related to the executive officers Purchased Assets; (b) furnish Buyers and their Representatives of Sellers and the properties with such financial, operating and other facilities, businesses, books, Contracts, personnel, records data and operations (including information related to the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller as Buyers or any of their respective Representatives may reasonably request; and (c) instruct the Representatives of Seller to disclose information subject to attorney-client privilege or cooperate with Buyers in conflict with any confidentiality agreement to which any Seller, any Subsidiary their investigation of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designeePurchased Assets. If any material is withheld Any investigation pursuant to this Section 6.1(a)6.02(a) shall be conducted during normal business hours and in such manner as not to interfere unreasonably with the conduct of research and development effort associated with the Purchased Assets or any other businesses of Seller. No investigation by Buyers or other information received by Buyers shall operate as a waiver or otherwise affect any representation, warranty or agreement given or made by Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialthis Agreement.
(b) Any investigation and examination contemplated by this Section 6.1 From the date hereof until the Closing, Buyers shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser (a) afford Seller and its Representatives in connection with such investigation full and examinationfree access to and the right to inspect all of the properties, assets (including, but not limited to the Buyer Intellectual Property), premises, Books and each of Purchaser Records, Contracts and other documents and data related to the Buyers’ business; (b) furnish Seller and its Representatives with such financial, operating and other data and information related to the Buyers’ business as Seller or any of its Representatives may reasonably request; and (c) instruct the Representatives of Buyers to cooperate with Seller in its investigation of the Buyers’ business. Any investigation pursuant to this Section 6.02(b) shall use their reasonable best efforts be conducted in such manner as not to not materially interfere unreasonably with the business of Sellers and their Subsidiaries. Without limiting the generality conduct of the foregoing, subject to Section 6.1(a), such Buyers’ business. No investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser Seller or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information received by Seller shall operate as Purchaser may from time to time reasonably requesta waiver or otherwise affect any representation, subject, in each case, to the confidentiality restrictions outlined warranty or agreement given or made by Buyers in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyAgreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Xenetic Biosciences, Inc.)
Access to Information. (a) Sellers agree that, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 1 contract
Sources: Master Sale and Purchase Agreement
Access to Information. (a) Sellers agree thatDuring the Pre-Closing Period, until Seller will (and will cause its Subsidiaries to) provide Buyer with reasonable access to (i) the earlier of the Executory Contract Designation Deadline Transferred Facilities and the termination Licensed Real Property (other than portions thereof that are access-restricted in accordance with Seller’s information security program or procedures and not exclusively related to the Business; provided that the Parties shall cooperate in good faith and use reasonable efforts to facilitate access in a way that permits Buyer to access such area without unduly exposing any of Seller’s proprietary or confidential operations) and (ii) subject to Section 4.8 and applicable Privacy Requirements (for which Seller will use commercially reasonable efforts to seek all necessary consents), (A) the Business Records and (B) to the extent reasonably necessary to implement the obligations of Seller under Article 6 of this Agreement, Purchaser shall be entitledsenior management, through its Representatives or otherwiseEmployees, to have reasonable access to and Contractors of the executive officers and Representatives of Sellers Transferred Companies and the properties Business, and other facilities, businesses, books, Contracts, personnel, records will (and operations (including the Purchased Assets and Assumed Liabilitieswill cause its Subsidiaries to) of Sellers and their Subsidiaries, including access use commercially reasonable efforts to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted furnish promptly to Buyer all information to the extent that it wouldrelated to the Transferred Companies, in Sellers’ reasonable determinationthe Employees, require any Sellerthe Contractors, the Transferred Assets, the Assumed Liabilities and the Business (including its properties and personnel) as Buyer may reasonably request, including, subject to applicable Privacy Requirements (for which Seller will seek all necessary consents), any Subsidiary information or data reasonably necessary to prepare for and implement the separation of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialBusiness.
(b) Any All access and investigation pursuant to Section 4.2(a) will be (i) conducted during normal business hours upon reasonable advance notice to Seller, (ii) conducted in such a manner as not to interfere unreasonably with the normal operations of the Business or any other business of Seller and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateits Subsidiaries, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the (iii) coordinated through Seller’s business of Sellers and their Subsidiariesdevelopment organization or a designee thereof. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall Seller will have the right to be have one or more of its Representatives present at all times during any meeting between any such accountant visits, discussions or contacts contemplated by Section 4.2(a).
(c) Notwithstanding anything to the contrary in this Agreement, during the Pre-Closing Period, (i) Buyer will not, and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) will cause its Affiliates and Sellers its and each of their respective Subsidiaries Representatives not to, contact or communicate with any vendor, supplier, landlord, customer, potential customer, employee (other than to the extent permitted in Section 4.2(a)), distributor or licensor of the Business or any Transferred Company, or any other Person having a business relationship with the Business or any Transferred Company, regarding the business, operations, or prospects of the Business or any Transferred Company or this Agreement or the transactions contemplated hereby without the prior consent of Seller (not to be unreasonably withheld, conditioned or delayed); provided that (A) Seller shall, if requested by ▇▇▇▇▇, introduce Buyer to such Persons for the purpose of facilitating the post-Closing integration of the Business into the businesses of Buyer, at times and subject to appropriate ground rules as agreed by the Parties and their Representatives outside counsel, (B) the foregoing shall prepare not restrict communications with such Persons with whom ▇▇▇▇▇ has an independent business relationship, and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, (C) the foregoing restrictions shall not apply to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.contacts
Appears in 1 contract
Access to Information. (a) Sellers agree that, until Until the earlier of the Executory Contract Designation Deadline and the valid termination of this AgreementAgreement pursuant to Article X and the Closing Date, Purchaser Sellers shall be entitled(a) afford to the officers, through its Representatives or otherwiseemployees, to have attorneys, financial advisors, financing sources, Affiliates and other representatives of Buyer (collectively, the “Buyer Advisors”), reasonable access during normal business hours and upon reasonable advance notice to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Acquired Assets and Assumed Liabilities) of Sellers and their SubsidiariesSellers’ properties, respectively, (including access to systemsexisting environmental reports), dataBooks and Records and Contracts; (b) make available to Buyer Advisors copies of all such Contracts, databases Books and Records and other existing documents and data as Buyer Advisors may reasonably request, including any financial data filed with the Bankruptcy Court or otherwise provided to any lender under any Indebtedness of Sellers; and (c) make available to Buyer Advisors during normal business hours and upon reasonable advance notice the appropriate management personnel of Sellers (and shall, where appropriate, use commercially reasonable efforts to cause their relevant attorneys, accountants and other professionals to be made available) for benefit plan administrationdiscussion of the Business, the Acquired Assets, the Assumed Liabilities and personnel as Buyer may reasonably request, in each case so long as such access does not unreasonably interfere with the operations of Sellers; provided provided, however, that no such investigation nothing in this Section 7.4 or examination otherwise (i) shall be permitted require Sellers or their advisors to furnish to Buyer Advisors any confidential materials prepared by Sellers’ financial advisors or legal advisors or any other materials subject to any attorney-client or other privilege or confidentiality obligations to the extent that it woulddisclosure thereof would result in a violation of Law or breach of an agreement or other obligation, in Sellers’ reasonable determination, require or (ii) shall be construed to create any Seller, any Subsidiary of any Seller or obligation on any of their respective the aforementioned Seller Representatives to disclose information subject take or refrain from taking any action, absent an express contractual requirement to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialdo so.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 1 contract
Access to Information. (a) During the Pre-Closing Period, Sellers agree thatshall, until and shall cause the earlier Acquired Companies to, use commercially reasonable efforts to provide Buyer and its Representatives with reasonable access to: (i) all of the Executory Contract Designation Deadline Acquired Companies’ properties and assets; (ii) all senior management of the termination Acquired Companies, or any person set forth on Section 5.2(a) of the Sellers Disclosure Schedules; and (iii) any other information relating solely to the business, properties, assets and personnel of the Acquired Companies as Buyer or any of its Representatives may reasonably request, including (x) any material Legal Proceeding commenced or threatened against, relating to or involving or otherwise affecting the Acquired Companies or (y) any occurrence that materially affects the assets, liabilities, business, financial condition, operations or prospects of the Acquired Companies. All access and investigation pursuant to this Agreement, Purchaser Section 5.2(a) shall be entitled(A) conducted during normal business hours upon reasonable advance notice to Sellers, (B) conducted in such a manner as not to interfere with the normal operations of the Acquired Companies, (C) coordinated through the Company’s chief executive officer, general counsel or designee thereof, and (D) conducted at Buyer’s sole cost and expense, and Sellers shall have the right to have one or more of its Representatives present at all times during any visits, examinations, discussions or otherwise, to have reasonable access contacts contemplated by this Section 5.2(a). Notwithstanding anything to the executive officers and Representatives of contrary contained herein, during the Pre-Closing Period, neither Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination nor any Acquired Company shall be permitted required to the extent that it provide access or disclose information where such access or disclosure would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to judgment: (1) jeopardize the attorney-client privilege or in other immunity or protection from disclosure of Sellers or any Acquired Company, (2) conflict with any confidentiality agreement (x) Law or Order (including any COVID-19 Measures, competition and/or antitrust Law, the EU General Data Protection Regulation (EU) 2016/679 and its implementing regulation (collectively, the “GDPR”), and the UK GDPR as defined in the Data Protection, Privacy and Electronic Communications (EU Exit) Regulations 2019 (“UK GDPR”)) applicable to Sellers or any Acquired Company or the assets, or operation of the business, of Sellers or any Acquired Company, (y) Contract to which any Seller, any Subsidiary of any Seller an Acquired Company is party or by which any of their respective Representatives the Acquired Companies’ assets or properties are bound or (z) other obligation of confidentiality, or (3) result in which casethe disclosure of competitively sensitive information; provided, to the extent requested by Purchaserhowever, that, in such instances, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to Buyer of the general nature of what is the information being withheld and, upon ▇▇▇▇▇’s request and at Buyer’s sole cost and expense, reasonably cooperate with Buyer to provide such information, in whole or in part, in a manner that would not result in any of the reason outcomes described in the foregoing clauses (1), (2) and (3). Notwithstanding any of the foregoing, the Acquired Companies may limit the access provided for withholding in this Section 5.2(a) to the extent such materialaccess, as reasonably determined by the Acquired Companies in light of the COVID-19 Pandemic or any COVID-19 Measures, would jeopardize the health and safety of any of the employees or other representatives of the Acquired Companies; provided, that if such access is limited, Sellers shall, and shall cause the Acquired Companies to, use commercially reasonable efforts to provide such access in an alternative manner, including via virtual or electronic means. Notwithstanding anything to the contrary contained herein, during the Pre-Closing Period, without the prior written consent of Sellers (which consent may be withheld for any reason), (x) Buyer shall not, and shall cause its Affiliates and its Representatives not to, contact any Governmental Body, vendor, supplier, customer, lender, counterparty to a Material Contract, or joint venture partner of an Acquired Company regarding the business, operations, or prospects of the Acquired Companies or this Agreement or the transactions contemplated hereby, and (y) Buyer shall have no right to perform invasive or subsurface investigations of the properties or facilities of any Acquired Company.
(b) Any investigation and examination contemplated by this Buyer shall hold any information obtained pursuant to Section 6.1 shall be subject to restrictions set forth 5.2(a) in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives confidence in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere accordance with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyConfidentiality Agreement.
Appears in 1 contract
Access to Information. (a) Sellers agree thatAfter Closing, until the earlier of the Executory Contract Designation Deadline Buyer will, and the termination of this Agreement, Purchaser shall be entitled, through will cause its Representatives or otherwiseto, afford to have Seller, including its Representatives, reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, all books, Contractsrecords, personnel, records files and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted documents related to the extent that it wouldBusiness in order to permit Seller to prepare and file its Tax Returns and to prepare for and participate in any investigation with respect thereto, to prepare for and participate in Sellers’ reasonable determination, require any other investigation and defend any Proceedings relating to or involving Seller, any Subsidiary of any or the Business for which Seller or any of their respective Representatives may be responsible, to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement discharge its obligations under this Agreement and the other Related Documents to which it is a party and for other reasonable purposes and will afford Seller reasonable assistance in connection therewith. Buyer will cause such records to be maintained for not less than seven years from the Closing Date and will not dispose of such records without first offering in writing to deliver them to Seller; provided, however, that in the event that Buyer transfers all or a portion of the Business to any third party during such period, Buyer may transfer to such third party all or a portion of the books, records, files and documents related thereof, provided such third party transferee expressly assumes in writing the obligations of Buyer under this Section 6.2(b). In addition, on and after the Closing Date, at Seller's request, any Subsidiary Buyer shall make available to Seller and its Affiliates, employees, representatives and agents, those employees of any Seller or any of their respective Representatives are bound (in which case, to the extent Buyer requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with any Proceeding, including to provide testimony, to be deposed, to act as witnesses and to assist counsel; provided, however, that (x) such investigation and examination, and each of Purchaser and its Representatives access to such employees shall use their reasonable best efforts to not materially unreasonably interfere with the business of Sellers and their Subsidiaries. Without limiting the generality normal conduct of the foregoing, subject operations of Buyer and (y) Seller shall reimburse Buyer for the out-of-pocket costs reasonably incurred by Buyer in making such employees available to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertySeller.
Appears in 1 contract
Access to Information. (a) Sellers agree The Seller agrees that, until prior to the earlier of Closing Date, the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser Buyer shall be entitled, through its Representatives or otherwiseofficers, employees and representatives (including, without limitation, their legal and financial advisors and accountants) and subject to the Confidentiality Agreement, to have reasonable access to make such investigation of the executive officers properties, businesses and Representatives operations of Sellers the Seller and such examination of the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality financial condition of the foregoing, subject Seller as they reasonably request and to Section 6.1(a), make extracts and copies of such books and records. Any such investigation and examination shall include be conducted during regular business hours and under reasonable access circumstances, and the Seller shall cooperate fully therein. No investigation by the Buyer prior to Sellers’ executive officers (or after the date of this Agreement shall diminish or obviate any of the representations, warranties, covenants or agreements of the Seller contained in this Agreement or the Seller Documents. In order that the Buyer may have full opportunity to make such physical, business, accounting and employees legal review, examination or investigation as it may reasonably request of Sellers and their respective Subsidiaries identified by such executive the affairs of the Seller, the Seller shall use commercially reasonable efforts to cause the officers), officesemployees, properties consultants, agents, accountants, attorneys and other facilitiesrepresentatives of the Seller to cooperate fully with such representatives in connection with such review and examination. The Seller shall promptly provide to the Buyer all documents and materials relating to the proposed sale of the Purchased Assets, Purchased Contracts or any portion thereof, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have otherwise cooperate with the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each caseBuyer, to the confidentiality restrictions outlined extent reasonably necessary in this Section 6.1connection with the Buyer’s preparation for or participation in any part of the Chapter 11 Case in which the Buyer’s participation is necessary, required or reasonably appropriate. Notwithstanding anything contained herein The Seller shall promptly deliver to the contraryBuyer all pleadings, Purchaser motions, notices, statements, schedules, applications, reports and other papers filed in any other judicial or administrative proceeding as the Buyer may reasonably request. In addition, the Seller shall consult with Sellers prior the Buyer with respect to conducting any environmental investigations written or examinations of any natureoral communication concerning, including Phase I and Phase II site assessments and any environmental sampling in respect of whole or in part, the Transferred Real Propertytransactions contemplated by this Agreement.
Appears in 1 contract
Access to Information. (a) Sellers agree thatSeller shall afford to Purchaser and its Affiliates and its and their Representatives reasonable access, until upon reasonable notice during normal business hours, consistent with applicable Law and in accordance with reasonable procedures established by Seller, during the earlier period prior to the Closing, and solely for purposes of integration planning or otherwise in furtherance of the Executory Contract Designation Deadline Transaction and the termination of other transactions contemplated by this Agreement, Purchaser shall be entitled, through its Representatives or otherwiseAgreement and the other Transaction Documents, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businessesproperties, books, Contracts, personnel, records and operations (including personnel of Seller and its Subsidiaries related to the Business, the Transferred Assets, the Assumed Liabilities and the Purchased Assets Entity (and Assumed Liabilities) of Sellers and their SubsidiariesSubsidiaries thereof); provided, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination neither Seller nor any of its Affiliates shall be permitted required to violate any obligation of confidentiality to which it or any of its Affiliates may be subject in discharging their obligations pursuant to this Section 5.4(a), and prior to the extent that it wouldClosing Date, in Sellers’ reasonable determinationPurchaser shall not conduct any Phase II Environmental Site Assessment or conduct any invasive testing or any sampling of soil, require sediment, surface water, ground water or building material at, on, under or within any facility on the Owned Real Property or the Leased Real Property, or any other property of Seller, any Subsidiary of any the other Seller Entities, the Purchased Entity or any of their respective Affiliates.
(b) ▇▇▇▇▇▇▇▇▇ agrees that any investigation undertaken pursuant to the access granted under Section 5.4(a) shall be conducted in such a manner as not to unreasonably interfere with the operation of the Business and all requests for such access shall be made to the Representatives of Seller designated by Seller. Notwithstanding anything in this Agreement to the contrary, neither Seller nor any of its Affiliates shall be required to provide access to or disclose information subject (i) where, in the reasonable judgment of Seller, such access or disclosure would jeopardize attorney-client or other applicable privilege or protection, or contravene any Laws or contractual obligations (it being agreed that, in the event that the restrictions set forth in clause (i) of this sentence apply, Seller shall cooperate in good faith to attempt to design and implement alternative disclosure arrangements to enable Purchaser to evaluate any such information without violating an obligation of confidentiality to any third party, jeopardizing the attorney-client privilege or in conflict with contravening any confidentiality agreement Laws or contractual obligations) or (ii) to which any Seller, any Subsidiary of any the extent such information concerns the Sale Process.
(c) At and after the Closing (for so long as Seller or any of its Affiliates owns any equity interests in the Purchased Entity or any of its Subsidiaries), the Purchased Entity shall, and shall cause its Subsidiaries to, afford Seller, its Affiliates and their respective Representatives are bound Representatives, during normal business hours, upon reasonable notice and without unreasonable interference with the operation of the Business, access to the properties, books, Contracts, records (in each case to the extent in the possession or control of the Purchased Entity or any of its Subsidiaries) and employees of the Business and the Purchased Entity (and Subsidiaries thereof) to the extent that such access may be reasonably required by Seller in connection with preparing financial statements, reporting and payment of Taxes, regulatory or securities Law reporting obligations, and compliance with applicable Laws or for use in any Proceeding (other than a Proceeding between or among Seller or any of its Affiliates, on the one hand, and the Purchased Entity or any of its Subsidiaries, on the other hand) or other legitimate non-competitive purposes in connection with Seller’s operation of any of the Retained Businesses following Closing; provided, however, that nothing in this Agreement shall limit any of Seller’s or any of its Affiliates’ (i) rights of discovery under applicable Law or (ii) access or information rights under the Amended and Restated LLC Agreement, or the rights of any director or officer of the Purchased Entity or any of its Subsidiaries designated by or on behalf of Seller or any of its Affiliates pursuant to the Amended and Restated LLC Agreement. The final sentence of Section 5.4(b) shall apply mutatis mutandis to any access provided to pursuant to this Section 5.4(c). For the avoidance of doubt, in the case of any matters that are the subject of this Section 5.4(c) and Article VII, the provisions of Article VII (and not this Section 5.4(c)) shall control. Notwithstanding anything to the contrary in this Agreement, neither Purchaser nor any of its Affiliates shall be required to (x) violate any obligation of confidentiality to which caseit or any of its Affiliates may be subject in discharging their obligations pursuant to this Section 5.4 or (y) provide access to or disclose information where, upon the advice of counsel, such access or disclosure would jeopardize attorney-client privilege or contravene any Laws (it being agreed that, in the event that the restrictions set forth in this clause (y) apply, the Purchased Entity shall, and shall cause its Subsidiaries to, cooperate in good faith to attempt to design and implement alternative disclosure arrangements to enable Seller to evaluate any such information without violating an obligation of confidentiality to any third party, jeopardizing the attorney-client privilege or contravening any Laws.
(d) The Purchased Entity shall, and shall cause its Subsidiaries to, hold all the books and records relating to the Business and existing on the Closing Date (in the case of the Purchased Entity, to the extent requested held by Purchaser, Sellers will use reasonable best efforts the Purchased Entity or any Subsidiary thereof as of the Closing Date) and not to seek an amendment destroy or appropriate waiver, dispose of any thereof for a period of seven (7) years from the Closing Date or necessary consents, such longer time as may be required by Law, and thereafter, if it desires to avoid destroy or dispose of such conflictbooks and records, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions offer first in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, writing at least sixty (60) days prior to the Closing, such destruction or disposition to the Chief Financial Officer of Parent or his designee, and following the Closing, surrender them to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialSeller.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Fidelity National Information Services, Inc.)
Access to Information. Between the date of this Agreement and the Effective Time, (a) Sellers agree thatthe Company will (i) give Acquiror and its authorized representatives reasonable access, until the earlier during regular business hours upon reasonable notice, to all offices, warehouses and other facilities of the Executory Contract Designation Deadline Company and its Subsidiaries and to all books and records of the termination Company and its Subsidiaries, (ii) permit Acquiror to make such reasonable inspections of this Agreementthe offices, Purchaser shall be entitledwarehouses, through facilities, books and records described in clause (i) as it may require, (iii) cause its Representatives or otherwise, to have reasonable access to the executive officers and Representatives those of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access its Subsidiaries to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection furnish Acquiror with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information with respect to the business and properties of the Company and Cable as Purchaser Acquiror may from time to time reasonably requestrequest and (iv) permit Acquiror to conduct, subject, in each case, at Acquiror's expense environmental tests and assessments and (b) Acquiror will keep the Company informed as to material developments affecting Acquiror and its Subsidiaries. All such access and information obtained by Acquiror and its authorized representatives shall be subject to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I terms and Phase II site assessments and any environmental sampling in respect conditions of the Transferred Real Propertyletter agreement between the Company and Acquiror dated July 19, 1995 (the "Confidentiality Agreement"). All such information obtained by the Company and its authorized representatives, and, after the Closing, all other information regarding Cable which SHI or any of its Subsidiaries possesses or has access to (including pursuant to Section 6.18), shall be treated in accordance with the terms of the Confidentiality Agreement as if such agreement obligated such Persons to hold such information confidential on the same basis as set forth therein MUTATIS MUTANDIS and Acquiror were a beneficiary of such obligations.
Appears in 1 contract
Sources: Merger Agreement (Comcast Corp)
Access to Information. (a) Sellers agree thatSubject to compliance with Applicable Law, Target shall afford Acquiror and its Representatives, reasonable access during the period until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, Agreement pursuant to have reasonable access to the executive officers and Representatives of Sellers Section 8.1 and the properties Effective Time to (i) all of Target’s and other facilitiesits Subsidiaries’ properties, businessespersonnel, books, Contractscontracts, personnelcommitments and records as reasonably requested by Acquiror and (ii) all other information concerning the business, records properties and operations (including the Purchased Assets personnel of Target and Assumed Liabilities) of Sellers and their Subsidiariesits Subsidiaries as Acquiror may reasonably request; provided, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(ba) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, Target shall have the right to have its Representatives present for any communication with employees or officers of Target and (b) where access to information is subject to any legal privilege or to contractual prohibition against disclosure, Acquiror and Target shall use commercially reasonable efforts to provide disclosure in a form, including common interest, that continues to protect the interest of both Acquiror and Target. Target shall use its commercially reasonable efforts: (a) upon Acquiror’s request, to assist Acquiror and its Representatives in the preparation of any audited historical and pro forma financial statements of Target that may be present at required in connection with Acquiror’s reporting obligations to the Securities and Exchange Commission related to this Agreement or any meeting between any of the transactions contemplated hereby (“Required Target Financials”) (b) reasonably promptly furnish such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser Acquiror may from time reasonably request in connection with the Required Company Financials. No information or Knowledge obtained in any investigation pursuant to time reasonably request, subject, in each case, this Section 6.2 or otherwise shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect obligations of the Transferred Real Propertyparties to consummate the Merger.
Appears in 1 contract
Sources: Merger Agreement (INPHI Corp)
Access to Information. (a) Sellers agree that, From the date of this Agreement until the Closing Date or earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall will be entitled, through its officers, employees and other Representatives or otherwise(including its legal advisors and accountants), to have reasonable access to make such investigation of the executive officers and Representatives of Sellers and the properties and other facilitiesproperties, businesses, books, Contracts, personnel, records businesses and operations (including of the Purchased Assets Entities and Assumed Liabilities) such examination of Sellers the books and their Subsidiaries, including access records of the Entities as it reasonably requests and to systems, data, databases for benefit plan administration; provided however, that no make extracts and copies of such books and records. Any such investigation or examination shall be permitted to the extent that it wouldexamination, in Sellers’ reasonable determination, require and all communications with any Seller, any Subsidiary of any Seller or any of Entity and their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a)8.1, Seller shall inform Purchaser in writing as will be coordinated through representatives designated by Seller. NIIH will cause the officers, employees, consultants, agents, accountants, attorneys and other Representatives of the Entities to cooperate with the general nature reasonable requests of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall will cooperate with the Entities and their respective Representatives and will use their its reasonable best efforts to not materially interfere minimize any disruption to the Entities’ business. No such investigation or examination will be permitted to the extent that it would require any Entity to disclose information regarding any bids, the identity of any bidder, confidentiality or non-disclosure agreements, letters of intent, expressions of interest or other proposals received, in each case prior to the date of this Agreement, in connection with transactions comparable to those contemplated by this Agreement or any information or analysis relating to any such communications. Notwithstanding anything to the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingcontrary in this Section 8.1, subject to Section 6.1(a), (i) any such investigation and examination shall include will be conducted upon reasonable access notice and under reasonable circumstances during regular business hours and will be subject to Sellers’ executive officers restrictions under applicable Law and (and employees ii) none of Sellers and their respective Subsidiaries identified by such executive officers)Parent, officesSeller, properties and other facilitiesAI Brazil or any Entity will be required to permit any inspection, and booksor to disclose any information, Contracts and records (including any document retention policies that in the reasonable judgment of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective SubsidiariesParent, Seller, AI Brazil or the Entities, as applicable, shall have would (A) waive the right protection of an attorney-client privilege or (B) would violate any confidentiality obligations to be present at which Parent, Seller, AI Brazil or any meeting between any such accountant and Purchaser or Representative of PurchaserEntity is bound; provided that Parent, whether such meeting is in personSeller, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each casethe applicable Entity or, to the extent related to AI Brazil’s interest in the Entities, AI Brazil, shall use commercially reasonable efforts to permit such inspection or provide such information in a manner that would not result in the waiver of such privilege or violate such confidentiality restrictions outlined obligations, including, in this Section 6.1the case of clause (B), by obtaining the consent of such third party if so requested by Purchaser. Notwithstanding anything Nothing contained herein is intended to modify or terminate the contraryConfidentiality Agreements, which will remain in full force and effect and applicable to Evaluation Material (as defined in the Confidentiality Agreements) provided to Purchaser shall consult with Sellers prior to conducting any environmental investigations and its Representatives hereunder or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertyconnection herewith.
Appears in 1 contract
Access to Information. (a) Sellers agree thatDuring the period from the date hereof to the Closing Date, until subject to applicable laws relating to the earlier exchange of the Executory Contract Designation Deadline information, Seller shall authorize and the termination of this Agreementpermit Purchaser and its representatives, Purchaser shall be entitled, through its Representatives or otherwise, accountants and counsel to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilitiesRecords, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which caseand, to the extent requested by Purchaserreasonably necessary, Sellers will use reasonable best efforts shall make available Seller's representatives to seek an amendment or appropriate waiver, or necessary consents, as may be required respond to avoid questions regarding the Records. In connection with such conflict, or restructure the form of examination and access, so as Purchaser agrees to permit the observe any confidentiality agreements known to it between Seller and third parties related to such information. The information and access requested); provided further, that notwithstanding the notice provisions in contemplated by this Section 9.2 hereof, all such requests for access to the executive officers of Sellers 6.3(a) shall be directedprovided during normal business hours, prior to upon reasonable written or oral notice and in such manner as will not unreasonably interfere with the Closing, to the Chief Financial Officer conduct of Parent Seller's or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such materialits Subsidiaries' businesses.
(b) Any For purposes of Purchaser's investigation and examination contemplated by pursuant to this Section 6.1 6.3(b), Seller upon reasonable written or oral notice shall use its reasonable efforts to attempt to cause any third party under contract to Seller to furnish to Purchaser, and to its authorized representatives, reasonable access to such party's books, records and properties, including, without limitation, all investment, regulatory, financial, accounting, and tax records and files relating to the administration of the Trust Accounts, and all files, computer records and account information necessary for the conversion after the Closing Date of the Trust Accounts, from the operating systems of Seller to such systems as Purchaser may designate. To the extent necessary, Seller shall use its reasonable efforts to attempt to cause any third party servicer or other third party to provide access to such party's premises and adequate space and facilities and the cooperation of its personnel, including, without limitation, copying facilities, to the end that such examination shall be subject completed expeditiously, completely and accurately. Any such investigation or examination pursuant to restrictions set forth in this Section 6.24 6.3(b) shall be at Purchaser's expense. Without limiting any of the foregoing, Purchaser and under applicable Lawits authorized representatives shall be specifically entitled to conduct (and Seller shall use its reasonable efforts to attempt to enable it to conduct) tests of any matters as they deem reasonably appropriate.
(c) Any information furnished by Seller or any third party service provider to Purchaser and its representatives pursuant hereto shall be treated as the sole property of Seller and, if the Merger shall not occur, Purchaser and its representatives shall return to Seller all of such written information and all documents, notes, summaries or other materials containing, reflecting or referring to, or derived from, such information. Sellers shall cooperatePurchaser shall, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser and use its Representatives in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoingcause its representatives to, subject to Section 6.1(a), keep confidential all such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilitiesinformation, and booksshall not directly or indirectly use such information for any competitive or other commercial purpose. The obligation to keep such information confidential shall continue for five years from the date the proposed Merger is abandoned and shall not apply to (i) any information which (y) was already in Purchaser's possession prior to the disclosure thereof by Seller; or (z) was then generally known to the public; or (ii) disclosures made as required by law. It is further agreed that, Contracts and records (including if in the absence of a protective order or the receipt of a waiver hereunder, Purchaser is nonetheless compelled to disclose information concerning Seller to any document retention policies Governmental Entity or else stand liable for contempt or suffer other censure or penalty, Purchaser may following written notice to Seller disclose such information to such Governmental Entity without liability hereunder. Purchaser shall promptly notify Seller in writing of Sellers) and access to accountants any request by any Governmental Entity for disclosure of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right any information required to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1kept confidential hereunder. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Property.6.4
Appears in 1 contract
Sources: Trust Company Agreement and Plan of Merger (Chemung Financial Corp)
Access to Information. (a) Sellers agree thatSubject to any applicable contractual confidentiality obligations (which the Company shall use all commercially reasonable efforts to cause to be waived), until the earlier of the Executory Contract Designation Deadline Company shall afford Komag and the termination of this Agreementits accountants, Purchaser shall be entitledcounsel and other representatives, through its Representatives or otherwise, to have reasonable access during normal business hours during the period prior to the executive officers and Representatives Closing to (a) all of Sellers and the properties and other facilitiesits properties, businessesemployees, books, Contractscontracts, personnel, agreements and records and operations (including relating to the Purchased Media Business or the Acquired Assets and Assumed Liabilities(b) all other information concerning the business, properties and personnel (subject to restrictions imposed by applicable law) of Sellers it as Komag may reasonably request for the purpose of conducting a due diligence review of the Media Business and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such the Acquired Assets. No information or knowledge obtained in any investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller ) shall inform Purchaser in writing as affect or be deemed to the general nature of what is being withheld and the reason for withholding such material.modify any representation or warranty contained herein. ------------------------------------------ "[***]" INDICATES REDACTED INFORMATION FOR WHICH CONFIDENTIAL TREATMENT IS REQUESTED ------------------------------------------
(b) Any investigation Subject to any applicable contractual confidentiality obligations (which Komag shall use all commercially reasonable efforts to cause to be waived), Komag shall afford the Company and examination contemplated by this Section 6.1 shall be its accountants, counsel and other representatives, reasonable access during normal business hours during the period prior to the Closing to all information concerning the business, properties and personnel (subject to restrictions set forth imposed by applicable law) of it as the Company may reasonably request for the purpose of evaluating an investment in Komag Common Stock. No information or knowledge obtained in any investigation pursuant to this Section 6.24 and under applicable Law. Sellers 6.1(b) shall cooperateaffect or be deemed to modify any representation or warranty contained herein.
(c) Subject to any required consents or approvals, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, with Purchaser Komag and its Representatives in connection with agents, representatives or consultants shall be permitted reasonable access, during normal business hours and without material interference to the Media Business, to all Leased Real Property prior to the Closing Date for the purpose of performing such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality investigations of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect condition of the Transferred Leased Real PropertyProperty as Komag shall deem necessary, including, but not limited to, investigation of the condition of the subsurface soils and groundwater.
Appears in 1 contract
Access to Information. (a) Sellers agree that, From and after the date hereof until the earlier of the Executory Contract Designation Deadline Closing and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any SellerApplicable Law, any Subsidiary of any the Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateParties shall, and shall cause each of its Representatives to, afford to Buyer and each of their Subsidiaries respective Representatives, access, at times mutually agreed among the parties, upon reasonable prior notice and in such manner as will not unreasonably interfere with the conduct of the business of Seller, to all properties, books and records of Seller to the extent related to the Acquired Assets and the Assumed Liabilities, together with the opportunity to make copies of such books, records and other documents and to discuss such matters with such members of management, officers, directors, counsel, accountants and other Representatives for Seller as Buye▇ ▇▇▇ its Representatives may reasonably request, and the Seller Parties shall use their commercially reasonable efforts to cause such members of management, officers, directors, counsel, accountants and other Representatives to reasonably cooperate with Buyer and each of their respective Representatives in connection therewith. Notwithstanding the foregoing provisions of this Section 6.2(a), the Seller Parties shall not be required to, or to cooperatecause any of its Subsidiaries to, with Purchaser and grant access or furnish information to Buyer or its Representatives to the extent that (i) such access would jeopardize attorney/client or attorney work product privilege, taking into account whether Buyer is willing to enter into a customary joint defense agreement or similar arrangement or (ii) such access or the furnishing of such information is prohibited by Applicable Law. In the event the Seller Parties do not provide access or information pursuant to clauses (i) or (ii) of the preceding sentence, the Seller Parties shall provide notice to Buyer that such information is being withheld, and the Seller Parties shall cause such entity to use its commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that will not violate the applicable privilege or Applicable Law and, if applicable, seek a waiver of any applicable third-party restrictions. All information provided pursuant to this Agreement shall remain subject in all respects to the Confidentiality Agreement.
(b) From and after the Closing Date and subject to Applicable Law and any required third party consents, Seller shall provide Buyer with access to (and the right to make copies of) the complete historical performance data for the Acquired Aircraft maintained in Seller’s Salesforce database for so long as Seller continues to have access to such database; provided, for the avoidance of doubt, that Seller shall not be required to renew or otherwise extend any contractual relationship with Salesforce to facilitate such access.
(c) For a period of seven (7) years from and after the Closing Date and subject to Applicable Law, in connection with (i) the preparation or amendment of Tax Returns, (ii) the preparation of financial statements, (iii) any regulatory reporting obligations or the requirements of any Applicable Law, or (iv) the determination of any matter relating to the rights or obligations of the Seller Parties or any of their Affiliates under any Transaction Document, upon reasonable prior notice, Buyer shall, and shall cause each of its Affiliates and Representatives to, afford to each Seller Party and their respective Representatives access, at times mutually agreed among the parties, upon reasonable prior notice and in such manner as will not unreasonably interfere with the conduct of the business of Buyer, to all books and records to the extent included within the Acquired Assets. Notwithstanding the foregoing provisions of this Section 6.2(c), Buyer shall not be required to, or to cause any of its Representatives or Affiliates to, grant access or furnish information to the Seller Parties or their Representatives to the extent that (i) such access would jeopardize attorney/client or attorney work product privilege, taking into account whether the applicable Seller Party is willing to enter into a customary joint defense agreement or similar arrangement or (ii) such access or the furnishing of such information is prohibited by Applicable Law. In the event Buyer does not provide access or information pursuant to clauses (i) or (ii) of the preceding sentence, Buyer shall provide notice to the Seller Parties that such information is being withheld, and Buyer shall use its commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that will not violate the applicable privilege or Applicable Law and, if applicable, seek a waiver of any applicable third-party restrictions.
(d) From and after the Closing Date, the Seller Parties and Buyer will, and will cause their Affiliates and their respective employees to, use commercially reasonable efforts to cooperate with the other Party, its Affiliates and their respective Representatives (at such other Party’s sole cost and expense) with respect to any third-party claims or third-party lawsuits relating to the Acquired Assets and the Assumed Liabilities, on the one hand, or the Excluded Assets and the Excluded Liabilities, on the other hand; provided, however, that, for the avoidance of doubt, neither Party shall be obligated to cooperate with the other Party if the Sellers or their Affiliates, on the one hand, or Buyer or its Affiliates, on the other hand, are adverse parties in such third-party claim or third-party lawsuit and such cooperation is reasonably pertinent thereto; provided, further, that the Party seeking the other Party’s cooperation shall reimburse such Party for reasonable out of pocket costs incurred in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real Propertycooperation.
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Sources: Asset Purchase Agreement (Wheels Up Experience Inc.)
Access to Information. (a) Sellers agree thatUpon reasonable notice, until the earlier of the Executory Contract Designation Deadline and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to the executive officers and Representatives of Sellers and the properties and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted to the extent that it would, in Sellers’ reasonable determination, require any Seller, any Subsidiary of any Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with applicable law and any confidentiality agreement to which any Sellerapplicable contractual restrictions, any Subsidiary of any the Seller or any of their respective Representatives are bound (in which case, to the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination contemplated by this Section 6.1 shall be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperateshall, and shall cause their Subsidiaries the Company to, afford to the officers, employees, accountants, counsel and each other representatives of their respective Representatives the Purchaser reasonable access during normal business hours to cooperateall of the Company's offices, with facilities, properties, books and records relating to the Business, and the Seller shall furnish promptly to the Purchaser all information concerning the business, properties and personnel of the Business as the Purchaser may reasonably request. All such information shall be kept confidential pursuant to the Confidentiality Agreement dated July 21, 1998 between the Purchaser and the Seller (the "Confidentiality Agreement"). In addition, the Seller shall use its Representatives reasonable efforts to cause the Company's independent public accountants to make available or provide to the Purchaser, its independent public accountants, its attorneys and its financing sources and the independent public accountants and attorneys of the Purchaser's financing sources, upon reasonable notice by the Purchaser, during regular business hours, reasonable access to their personnel, work papers and such other reasonably requested documentation relating to their work papers and to their reports on the books and records of the Company; provided that if the Company's independent public accountants shall so request, the Purchaser shall agree with the Company's independent public accountants that it will not acquire any rights as a result of such access that it would not otherwise have had, that the Company's independent public accountants would not assume any duties or obligations in connection with such investigation access and examination, that the Purchaser will indemnify and each hold harmless the Company's independent public accountants to the extent such claim arises as a direct result of the Company's independent public accountants' permitting the Purchaser and its Representatives shall use their reasonable best efforts representatives access to not materially interfere its working papers in connection with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified transaction contemplated by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyAgreement.
Appears in 1 contract
Access to Information. From the date hereof until the Closing Date, Seller will promptly: (a) Sellers agree thatgive Buyer and its counsel, until the earlier of the Executory Contract Designation Deadline financial advisors, auditors and the termination of this Agreement, Purchaser shall be entitled, through its Representatives or otherwise, to have other authorized representatives reasonable access to the executive officers offices, properties, books and Representatives of Sellers records relating to the Division and the properties Transferred Assets (and other facilities, businesses, books, Contracts, personnel, records and operations (including the Purchased Assets and Assumed Liabilities) of Sellers and their Subsidiaries, including access relating to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted Seller itself to the extent that it wouldin the reasonable judgment of Buyer such information relates to the transactions contemplated by this Agreement) upon reasonable prior notice and during normal business hours, in Sellers’ reasonable determination(b) furnish to Buyer its counsel, require any Sellerfinancial advisors, any Subsidiary of any auditors and other authorized representatives such information relating to the Division or the Transferred Assets (and relating to Seller or any of their respective Representatives to disclose information subject to attorney-client privilege or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, itself to the extent requested by Purchaser, Sellers will use in the reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid judgment of Buyer such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access information relates to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld and the reason for withholding such material.
(b) Any investigation and examination transactions contemplated by this Section 6.1 shall be subject Agreement) as the Buyer may reasonably request and (c) instruct the directors, officers, employees, counsel, auditors and financial advisors of Seller to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall cooperate, and shall cause their Subsidiaries and each of their respective Representatives to cooperate, cooperate with Purchaser Buyer and its Representatives counsel, financial advisors, auditors and other authorized representatives in connection with their investigation of the Division and the Transferred Assets (and of Seller itself to the extent in the reasonable judgment of Buyer such investigation and examinationrelates to the transactions contemplated by this Agreement). In addition, and each of Purchaser and its Representatives shall use their reasonable best efforts to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, Buyer shall have the right right, after consultation with Seller (and in conjunction with Seller if requested) to be present at any meeting between any such accountant meet with the principal customers and Purchaser or Representative suppliers of Purchaserthe Division, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives Seller shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information give Buyer its full cooperation with respect thereto as Purchaser may from time to time reasonably request, subject, in each case, to the confidentiality restrictions outlined requested. Nothing contained in this Section 6.1. Notwithstanding anything contained herein 5.02 shall affect the survival of the representations, warranties, covenants, agreements and indemnities of Seller as hereinafter provided or the conditions to the contrary, Purchaser shall consult with Sellers prior to conducting any environmental investigations or examinations obligations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect of the Transferred Real PropertyBuyer under Section 8.01 hereof.
Appears in 1 contract
Access to Information. (a) Sellers agree that, until For a period of seven (7) years from and after the earlier end of the Executory Contract Designation Deadline year in which the Closing occurs (or such longer period as is provided for in Section 5.15(c)), the Parent shall, and shall cause the Purchaser to, (i) afford to the Sellers and their advisors and representatives, upon reasonable prior notice and during normal business hours at such times as may be reasonably convenient to the Purchaser and the termination of this AgreementParent, Purchaser shall be entitled, through its Representatives or otherwise, to have reasonable access to and to copy, for any proper purpose, including for making any Tax or regulatory filing, or prosecuting or defending any Legal Proceeding (other than any Legal Proceeding in which the executive officers and Representatives of Sellers on the one hand and the properties Parent or the Purchaser on the other hand are adverse parties), all Books and other facilitiesRecords, businesses, books, Contracts, personnel, records at the sole cost and operations expense of the Sellers; (including the Purchased Assets and Assumed Liabilitiesii) of Sellers and their Subsidiaries, including access use commercially reasonable efforts (without undertaking any undue burden or expense) to systems, data, databases for benefit plan administration; provided however, that no such investigation or examination shall be permitted make available to the extent that it wouldSellers upon written request the personnel of the Parent or the Purchaser to assist the Sellers in locating and obtaining any Books and Records for any proper purpose described in clause (i) above and (iii) not dispose of or destroy any material Books and Records relating to tax or other regulatory matters in connection with the Business without first offering to turn over possession thereof to the Sellers by written notice to the Sellers at least ninety (90) days prior to the proposed date of such disposition or destruction. Notwithstanding the previous sentence, nothing contained in Sellers’ reasonable determination, this Section 5.15 shall require any Seller, any Subsidiary of any Seller the Parent or any of their respective Representatives the Purchaser to disclose information subject that relates to attorney-client privilege businesses or in conflict with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or any of their respective Representatives are bound (in which case, to assets other than the extent requested by Purchaser, Sellers will use reasonable best efforts to seek an amendment or appropriate waiver, or necessary consents, as may be required to avoid such conflict, or restructure the form of access, so as to permit the access requested); provided further, that notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief Financial Officer of Parent or his designee, and following the Closing, to the Chief Restructuring Officer of Parent or his or her designee. If any material is withheld pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general nature of what is being withheld Business and the reason for withholding such materialAssets.
(b) Any investigation For a period of seven (7) years from and examination contemplated by this Section 6.1 shall be subject to restrictions set forth after the end of the year in which the Closing occurs (or such longer period as is provided for in Section 6.24 and under applicable Law. 5.15(c) below), the Sellers shall cooperateshall, and shall cause their Subsidiaries Affiliates to, (i) afford to the Parent and each their advisors and representatives, upon reasonable prior notice and during normal business hours at such times as may be reasonably convenient to the Sellers, reasonable access to and to copy, for any proper purpose, including for making any Tax or regulatory filing, or prosecuting or defending any Legal Proceeding (other than any Legal Proceeding in which the Sellers on the one hand and the Parent or the Purchaser on the other hand are adverse parties), all books and records in the possession or control of the Sellers or their respective Representatives Affiliates relating to cooperatethe Business or the Assets (the “Seller Books and Records”), with Purchaser at sole costs and its Representatives expense of Parent; and (ii) use commercially reasonable efforts (without undertaking any undue burden or expense) to make available to the Parent upon written request the personnel of the Sellers to assist the Parent in locating and obtaining any Seller Books and Records for any proper purpose described in clause (i) above and (iii) not dispose of or destroy any material Seller Books and Records relating to tax or other regulatory matters in connection with such investigation and examination, and each of Purchaser and its Representatives shall use their reasonable best efforts the Business without first offering to not materially interfere with the business of Sellers and their Subsidiaries. Without limiting the generality of the foregoing, subject to Section 6.1(a), such investigation and examination shall include reasonable access to Sellers’ executive officers (and employees of Sellers and their respective Subsidiaries identified by such executive officers), offices, properties and other facilities, and books, Contracts and records (including any document retention policies of Sellers) and access to accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and each of their respective Subsidiaries, as applicable, shall have the right to be present at any meeting between any such accountant and Purchaser or Representative of Purchaser, whether such meeting is in person, telephonic or otherwise) and Sellers and each of their respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s Representatives such additional financial and operating data and other information as Purchaser may from time to time reasonably request, subject, in each case, turn over possession thereof to the confidentiality restrictions outlined Parent by written notice to the Parent at least ninety (90) days prior to the proposed date of such disposition or destruction. Notwithstanding the previous sentence, nothing contained in this Section 6.1. Notwithstanding anything contained herein 5.15 shall require the Sellers to disclose information that relates to businesses or assets other than the Business and the Assets.
(c) The seven (7) year period referred to in Section 5.15(a) and Section 5.15(b) above shall be extended if the applicable party requiring access to the contrary, Books and Records or the Seller Books and Records (as the case may be) advises the other parties in writing that any Legal Proceeding (other than any Legal Proceeding in which the Sellers on the one hand and the Parent or the Purchaser shall consult with Sellers prior to conducting any environmental investigations on the other hand are adverse parties) that involves or examinations of any nature, including Phase I and Phase II site assessments and any environmental sampling in respect may require disclosure of the Transferred Real PropertyBooks and Records or the Seller Books and Records (as the case may be) is pending or threatened at the termination of such seven (7)-year period, in which case such extension shall continue until any such Legal Proceeding has been finally resolved or settled through a final, non-appealable judgment or otherwise is no longer pending or threatened. All confidential or proprietary information received by, or made available to, the Sellers pursuant to this Section 5.15 shall be kept confidential to the extent required by and in accordance with Section 5.13.
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