Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 6 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Access. At all times during the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingAcceptance Time, the Company will (shall afford Parent, Acquisition Sub, their officers, a reasonable number of their employees and will cause its Subsidiaries to) afford Parent their financial advisors, business consultants, legal counsel, accountants and its Representatives other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, books and records, contracts, analyses, tax returns, data, regulatory materials, reports, projections, plans, systems, senior management, commitments, offices and other facilities, Contracts, books and records properties and personnel of the Company GroupCompany; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) granting such access would violate any obligations of the Company or any of its Subsidiaries with respect to confidentiality to any Person or otherwise breach, contravene or violate any then effective Contract to which the Company or any of its Subsidiaries is a party, (iii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (civ) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any a Person the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) . In the event that the Company does not provide access would result or information in reliance on the disclosure of any material trade secrets of Persons preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 7.6 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the properties of the Company Group will or any of its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary Company’s prior written consent, in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawsole discretion. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.47.6. Nothing in this Section 7.6 shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company Subsidiaries or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 6 contracts
Sources: Merger Agreement (Skullcandy, Inc.), Merger Agreement (Mill Road Capital II, L.P.), Merger Agreement (Mill Road Capital II, L.P.)
Access. At all times during During the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingEffective Time, the Company will shall (and will shall cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries and, except during such period, the Company shall (and shall cause its Subsidiaries to) furnish reasonably promptly to Parent all information (financial or otherwise) concerning its business, properties and personnel as Parent may reasonably request, in each case solely for the purpose of effectuating the Transactions or for reasonable integration planning purposes; provided, however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group or its Subsidiaries to restrict or otherwise prohibit access to such documents or information; , (b) the Company reasonably determines access to such documents or information would give rise to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; information or (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent relate to any adverse Legal Proceeding between the evaluation or negotiation of this Agreement, the Transactions or, subject to Section 6.2 and Section 6.3, an Acquisition Proposal or Superior Proposal. In the event that the Company and does not provide access or information in reliance on clauses (a) or (b) of the preceding sentence, it shall use its Affiliates, on reasonable best efforts to communicate the one hand, and applicable information to Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group a way that would not violate any applicable Law or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationwaive such a privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 7.6 (i) shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties or any of the Company Group will its Subsidiaries and (ii) shall be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawrequirements. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available 7.6. Nothing in this Section 7.6 shall be construed to Parent or any of its Representatives by or from require the Company or any of its Subsidiaries or Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals or another person designated by the Company. In the event opinions that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightare not readily available.
Appears in 3 contracts
Sources: Merger Agreement (Johnson & Johnson), Merger Agreement (Abiomed Inc), Merger Agreement (Johnson & Johnson)
Access. At all times during (a) For purposes of furthering the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingtransactions contemplated hereby, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, hours upon reasonable advance noticenotice to the Company, throughout the period from the date hereof until the earlier of the termination of this Agreement and the Effective Time, to the its and its Subsidiaries’ personnel, properties, offices and other facilitiescontracts, Contractscommitments, books and records and such other information concerning its business, properties and personnel of the Company Group, except that the Company as Parent may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingrequest. Notwithstanding anything to the contrary contained in this AgreementSection 5.3(a), any document, correspondence or information or other access provided pursuant to this Section 5.3(a) may be redacted or otherwise limited to the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions extent required to prevent disclosure of information concerning the valuation of the Confidentiality Agreement will apply to any information obtained by Company, Parent and the Mergers or any of its Representatives in connection with any investigation conducted other similarly confidential or competitively sensitive information. All access pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available 5.3(a) shall be (i) conducted in such a manner as not to Parent or any interfere unreasonably with the normal operations of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to Subsidiaries and (ii) coordinated through the General Counsel of the Company, Company or another person designated by the Company. a designee thereof.
(b) In the event of (i) an occurrence which would make it reasonably likely that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters conditions set forth in clauses Section 6.2(a), Section 6.2(b) or Section 6.2(c) would not be met or (aii) the Company Board determining in good faith that it could be entitled to (emake a Company Adverse Recommendation Change pursuant to Section 5.4(e) of or Section 5.4(f) or cause the Company to terminate this Agreement in accordance with Section 7.47.1(i), it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding Company Board needs such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements such determination, at the Company’s request, Representatives of Parent will meet with Representatives of the Company and provide the Company with information reasonably requested in connection with the foregoing.
(c) Notwithstanding anything to permit reasonable substitute the contrary contained in this Section 5.3, neither the Company nor Parent, as applicable, nor any of its Subsidiaries shall be required to provide any access, or make available any document, correspondence or information, if doing so would, in the judgment of its legal counsel, (i) jeopardize the attorney-client privilege of the Company or Parent, as applicable, or any of its Subsidiaries or (ii) conflict with any (A) Law applicable to the Company or any of its Subsidiaries or the assets, or operation of the business, of the Company or Parent, as applicable, or any of its Subsidiaries or (B) Contract to which the Company or Parent, as applicable, or any of its Subsidiaries is a party or by which any of their assets or properties are bound; provided, that in such instances the party withholding access shall inform the other party of the general nature of the information being withheld and, upon the other party’s request, reasonably cooperate with the other party to provide such information, in whole or disclosurein part, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner that would not result in any of the outcomes described in the foregoing clauses (i) and (ii).
(d) The parties hereto hereby agree that all information provided to remove them or their respective Representatives in connection with this Agreement and the basis for consummation of the objectiontransactions contemplated hereby shall be governed in accordance with the Confidentiality and Non-Disclosure Agreement, including by arrangement dated as of appropriate March 19, 2018, between the Company and Concentrix Corporation (the “counsel-to-counsel” disclosureConfidentiality Agreement”), clean room procedures, redaction which shall continue in full force and other customary procedures, entry into a customary joint defense agreement and, effect in accordance with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightits terms.
Appears in 3 contracts
Sources: Merger Agreement (Synnex Corp), Merger Agreement (Synnex Corp), Merger Agreement (Convergys Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingUpon reasonable advance written notice, the Company will shall (and will shall cause its Subsidiaries to) afford Parent and its Representatives Parent’s representatives reasonable access access, during normal business hours, upon reasonable advance noticehours throughout the period prior to the Effective Time, to the Acquired Companies’ employees, customers, vendors, partners, properties, offices and other facilitiesbooks, Contracts, books and records and personnel contracts and, during such period, the Company shall (and shall cause its Subsidiaries to) furnish promptly to Parent all available information concerning its business as Parent may reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information, that in the reasonable judgment of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, could: (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons Third Parties; (b) violate any obligation of the Acquired Companies with respect to confidentiality, non-disclosure or privacy; (c) jeopardize protections afforded the Company under the attorney-client privilege or the attorney work product doctrine; (d) violate any Law (it being agreed that, with respect to subclauses (a), (b) and (c), that the Parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in any such trade secrets no longer being protected as such under applicable Law following such disclosurejeopardy or contravention); or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company GroupAcquired Companies’ business. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any All information obtained by Parent or any of and its Representatives in connection with any investigation conducted representatives pursuant to the access contemplated by this Section 7.4, other than 6.4 shall be treated as “Evaluation Material” of the Acquired Companies for purposes of the Confidentiality Agreement. No investigation pursuant to this Section 6.4 shall affect or be deemed to modify any information that has been made, is representation or becomes warranty in this Agreement of any party hereto or otherwise limit or affect the remedies available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 6.4 must be directed to the General Counsel of the Company, Company or another person Person designated in writing by the Company. In Notwithstanding anything herein to the event that contrary, Parent and Acquisition Sub shall not, and shall cause their respective representatives not to, contact any customer or supplier of the Company objects to in connection with the Merger or any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses other transactions contemplated by this Agreement without the Company’s prior consent (a) such consent not to (e) of this Section 7.4be unreasonably withheld, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons thereforconditioned or delayed), and prior to preventing such access or withholding such information or documents from Parent and its Representatives, Acquisition Sub acknowledge and agree that any such contact shall be arranged by and with a representative of the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightparticipating.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Franklin UK Bidco LTD), Merger Agreement (Planet Payment Inc)
Access. At all times during (a) During the period commencing with from the execution and delivery date of this Agreement and continuing until to the earlier to occur of Closing or the prior termination of this Agreement pursuant to Article IX and the ClosingSection 8.1, the Company will (and will cause its Subsidiaries to) afford Parent Buyer and its Representatives counsel, accountants, financial advisors, potential financial sources, employees, agents and other authorized representatives (the “Buyer Representatives”) shall be given reasonable access during normal business hours, hours and upon reasonable advance notice, prior notice to the facilities, properties, offices and other facilities, Contractspersonnel, books and records and personnel (including, without limitation, Tax records) of the Company NOARK Group, except Seller and its Affiliates for the purpose of conducting an investigation of their financial condition, status, Business, employment matters, properties and assets; provided, however, that (i) Buyer and the Company may restrict Buyer Representatives will not request information, or otherwise prohibit access to contact, any documents officer, director or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk employee of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant toSeller, or give any Person the right to terminate Seller’s Affiliates, or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets member of Persons in a manner that would result in the NOARK Group without arranging such contact with any such trade secrets no longer being protected as such under applicable Law following such disclosure; or of the individuals listed on Schedule 1.1(C), and (eii) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will shall be conducted in a manner that does not unreasonably and materially interfere with the conduct normal operations of the NOARK Group. Additionally, Buyer Representatives shall have from the date of this Agreement to the Closing Date or the prior termination of this Agreement pursuant to Section 8.1 the opportunity to conduct further environmental reviews during regular business hours in such manner as not to unreasonably interfere with normal operations of the Company NOARK Group and, in each case, with at least forty-eight (48) hours advanced written notice to Seller, provided, however, that Buyer shall have no right to perform, whether itself or create a material risk of damage through any third parties, any invasive soil or destruction groundwater tests, or any other invasive environmental assessments in respect to any property or assets member of the Company GroupNOARK Group and their respective assets without prior consent of Seller. Any access to Seller and the properties of the Company NOARK Group will cause their respective counsel, accountants, financial advisors, employees, agents and other authorized representatives (the “Seller Representatives”) to be available to Buyer and the Buyer Representatives at all reasonable times during normal business hours and upon reasonable prior notice for such purposes. Seller shall have the right to have a Seller Representative present at all times during any such inspections, interviews and examinations. Additionally, Buyer shall, and shall cause the Buyer Representatives to, hold in confidence all such information provided or made available to Buyer or the Buyer Representatives pursuant to this Section 5.8 on the terms and subject to the Company’s reasonable security measures conditions contained in the Confidentiality Agreement.
(b) Notwithstanding the foregoing, Buyer shall have no right of access to, and insurance requirements Seller shall have no obligation to provide to Buyer, information relating to (i) bids received from others in connection with the transactions contemplated by this Agreement (or similar transactions) and will not include information and analyses (including financial analyses) relating to such bids; (ii) any information the right disclosure of which would jeopardize any privilege available to perform invasive testing. Notwithstanding anything to the contrary in this AgreementSeller, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions Seller Parent, any member of the Confidentiality Agreement will apply to any information obtained by Parent NOARK Group or any of its Seller’s Affiliates relating to such information or would cause Seller, Seller Parent, any member of the NOARK Group or any of Seller’s Affiliates to breach a confidentiality obligation; or (iii) any information the disclosure of which would result in a violation of Law. Notwithstanding the foregoing, Seller shall provide Buyer with appropriate substitute disclosure arrangements under circumstances in which the restriction of the preceding sentence apply. Buyer and Seller shall cooperate to ensure that the provision of access hereunder to Buyer and the Buyer Representatives shall comply in all respects with the FERC’s Standards of Conduct for Transmission Providers set forth in 18 C.F.R. Part 358, et seq.
(c) Buyer shall indemnify the Seller Indemnified Parties and their respective representatives, and save them harmless, effective as and from the date hereof, from and against any Damages that they or any of them may suffer or incur, or that may be made or brought against any of them, as a result of, in respect of, or arising out of any injury to the person or property of Buyer or the Buyer Representatives as a result of, or in connection with any investigation conducted pursuant site visits or inspections of the assets or properties of any Seller Indemnified Party. THE INDEMNIFICATION PROVISIONS IN THIS SECTION 5.8 SHALL BE ENFORCEABLE REGARDLESS OF WHETHER ANY PERSON (INCLUDING THE PERSON FROM WHOM INDEMNIFICATION IS SOUGHT) ALLEGES OR PROVES THE SOLE, CONCURRENT, CONTRIBUTORY OR COMPARATIVE NEGLIGENCE OF THE PERSON SEEKING INDEMNIFICATION OR THE SOLE OR CONCURRENT STRICT LIABILITY IMPOSED UPON THE PERSON SEEKING INDEMNIFICATION.
(d) Promptly after the date of this Agreement, Seller shall request from each Person that made an Acquisition Proposal that such Person return to the access contemplated by this Section 7.4NOARK Group or, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives if provided for in the ordinary course of their ongoing business arrangements consistent relevant confidentiality agreement with past practicesuch Person, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed destroy any and all confidential information relating to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects NOARK Group previously furnished to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightPerson.
Appears in 3 contracts
Sources: Securities Purchase Agreement (Spectra Energy Partners, LP), Securities Purchase Agreement (Atlas Pipeline Holdings, L.P.), Securities Purchase Agreement (Atlas Pipeline Partners Lp)
Access. At all times during During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingPre-Closing Period, the Company will (shall, and will shall cause its Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; or (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other handhand (it being understood that if the Company and its Subsidiaries do not provide any information in reliance on the exclusions in the foregoing clauses (a), (b) or (c), then the Company or such Subsidiary will use commercially reasonable efforts to provide notice to Parent promptly upon obtaining knowledge that such information is being withheld and the Company or such Subsidiary will use reasonable best efforts to communicate, to the extent permitted, the applicable information or other matter in a way that would not prohibit any applicable Law or agreement, result in the waiver of any such privilege, cause a violation or default under such Contract). Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions appraisals or other informationopinions. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementany “invasive” testing or soil, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawair or groundwater sampling, including any Phase I or Phase II environmental assessments. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.8. All requests for access pursuant to this Section 7.4 6.8 must be directed to the Company’s General Counsel of the Company, or another person designated in writing by the Company. In Without limiting the event that generality of the foregoing, during the Pre-Closing Period, the Company objects agrees to, and to any request submitted pursuant cause its Subsidiaries to, subject to applicable Law and this Section 7.4 on the basis of one or more of the matters set forth in clauses 6.8 (ai) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld reasonably assist and the reasons therefor, and prior to preventing such access or withholding such information or documents from reasonably cooperate with Parent and its Representatives, Subsidiaries to facilitate planning for the post-Closing integration of the Company shall cooperate and its Subsidiaries with Parent and its Subsidiaries (including, at the request of Parent from time to make appropriate substitute arrangements time, reasonably assisting and cooperating with Parent and its Subsidiaries in the planning and development of a post-Closing integration plan), (ii) provide reasonable access to permit reasonable substitute access or disclosure, including through the use of reasonable best key personnel identified by Parent to facilitate Parent’s efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause post-Closing retention of such key personnel and (ciii) provide Parent with reasonable periodic updates on activities relating to the integration and performance of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightthe Company’s and its Subsidiaries’ existing businesses.
Appears in 3 contracts
Sources: Merger Agreement (True Wind Capital, L.P.), Merger Agreement (Zix Corp), Merger Agreement (Open Text Corp)
Access. At all times during During the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingEffective Time, the Company will shall (and will shall cause its Subsidiaries to) afford (a) provide to Parent and its Representatives reasonable access during normal business hours, upon reasonable advance noticeprior notice to the Company, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries and (b) furnish reasonably promptly to Parent all information (financial or otherwise) concerning its business, except properties and personnel as Parent may reasonably request, including with respect to the Company Programs, to the extent reasonably available, and keep Parent reasonably apprised as to any material developments with respect to the Company Programs; provided, however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (aA) any applicable Law or regulation requires the Company Group or its Subsidiaries to restrict or otherwise prohibit access to such documents or information; information or (bB) the Company in good faith determines access to such documents or information would give rise reasonably be expected to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (eC) such documents or information are reasonably pertinent relate to any adverse Legal Proceeding between the evaluation or negotiation of this Agreement and the transactions contemplated hereby or, subject to Sections 6.2 and 6.3, an Acquisition Proposal or Superior Proposal. In the event that the Company and does not provide access or information in reliance on clauses (A) or (B) of the preceding sentence, it shall use its Affiliates, on reasonable best efforts to communicate the one hand, and applicable information to Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group a way that would not violate any applicable Law or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationwaive such a privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 7.6 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable LawSubsidiaries. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.47.6. Nothing in this Section 7.6 or elsewhere in this Agreement shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company Subsidiaries or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals or another person designated by the Company. In the event opinions that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightare not readily available.
Appears in 3 contracts
Sources: Merger Agreement (Endo, Inc.), Merger Agreement (Biospecifics Technologies Corp), Merger Agreement (Endo International PLC)
Access. At all times during (a) Subject to compliance with applicable Laws (including any Public Health Measures), each party shall afford to the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent other party and its Representatives reasonable access during normal business hours, upon reasonable advance noticethroughout the period prior to the earlier of the Effective Time and the Termination Date, to the such party’s and its Subsidiaries’ officers, employees, properties, offices and other facilitiesassets, equipment, inventory, operating sites, Contracts, commitments, books and records and personnel of the Company Grouprecords, except other than any such matters that the Company may restrict or otherwise prohibit access to any documents or information relate to the extent thatnegotiation and execution of this Agreement. The foregoing notwithstanding, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound shall not be required to afford such access if it would violate or cause a default pursuant to, or give any Person unreasonably disrupt the right to terminate or accelerate the rights pursuant to, operations of such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group party or any of its Representatives Subsidiaries, would cause a violation of any agreement to prepare which such party or any reportsof its Subsidiaries is a party, analyseswould, appraisalsin the reasonable judgment of such party, opinions result in a loss of privilege or other informationtrade secret protection to such party or any of its Subsidiaries or would constitute a violation of any applicable Laws, including any Public Health Measures (provided, that in each case such party shall use its reasonable best efforts to allow for such access or to make available reasonable and appropriate substitute disclosure arrangements in a way that would not have any of the foregoing effects). Any investigation conducted pursuant Subject to the access contemplated by this Section 7.4 will foregoing restrictions, each party shall be conducted in a manner that does not unreasonably permitted to conduct reasonable inspections, assessments and materially interfere with the conduct testing of the business other party’s properties, assets, equipment, inventory and operating sites; provided, however, that nothing herein shall authorize any party or its Representative to undertake any testing involving invasive techniques, including testing involving sampling of soil, sediment, groundwater, surface water, air or building materials, at any of the Company Group other party’s or create a material risk its Subsidiary’s properties, without the prior written consent of damage such other party and provided, further, that no such investigation shall affect any representation or destruction warranty given by either party hereunder.
(b) Each party hereby agrees that all information provided to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent it or any of its Representatives in connection with any investigation conducted pursuant to this Agreement and the access consummation of the transactions contemplated by this Section 7.4Agreement shall be deemed to be Evaluation Material, other than any information that has been madeas such term is used in, is or becomes available to Parent or any and shall be treated in accordance with, the confidentiality agreement, dated as of its Representatives by or from June 28, 2023, between the Company or any of its Representatives in and Parent (the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement”).
Appears in 3 contracts
Sources: Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Noble Corp PLC)
Access. At all times during the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingAcceptance Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group or its Subsidiaries to restrict or otherwise prohibit access to such documents or information; , (b) granting such access would violate any obligations of the Company or any of its Subsidiaries with respect to confidentiality to any third party or otherwise breach, contravene or violate, constitute a default under, or give a third party the right terminate or accelerate an obligations under, any then effective Contract to which the Company or any of its Subsidiaries is a party, or (c) access to such documents or information would give rise reasonably be expected to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which , provided, that the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person shall use its reasonable best efforts to communicate the right applicable information to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 5.1 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries or create a material risk of damage or destruction to any material property or assets of the Company Group. Any access to the properties or any of the Company Group will its Subsidiaries, shall be subject to the Company’s reasonable security measures and insurance requirements requirements, and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary Company’s prior written consent, in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawsole discretion. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.45.1. Nothing in this Section 5.1 or elsewhere in this Agreement shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company Subsidiaries or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Horizon Pharma PLC), Merger Agreement (Raptor Pharmaceutical Corp)
Access. At all times during During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingPre-Closing Period, the Company will (will, and will cause its Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets Trade Secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other handhand (it being understood that if the Company and its Subsidiaries do not provide any information in reliance on the exclusions in the foregoing clauses (a) or (b), then the Company or such Subsidiary will use commercially reasonable efforts to provide notice to Parent promptly upon obtaining knowledge that such information is being withheld and the Company or such Subsidiary will use reasonable best efforts to communicate, to the extent permitted, the applicable information or other matter in a way that would not prohibit any applicable law or agreement or result in the waiver of any such privilege). Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementany “invasive” testing or soil, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawair or groundwater sampling, including any Phase I or Phase II environmental assessments. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.8. All requests for access pursuant to this Section 7.4 6.8 must be directed to the Company’s General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Forescout Technologies, Inc), Merger Agreement (Forescout Technologies, Inc), Merger Agreement (Forescout Technologies, Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX X and the ClosingAppointment Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (ciii) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access would result contemplated by this Section 6.4 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the disclosure of any material trade secrets of Persons rights and remedies available to Parent and Acquisition Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or to waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.4 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the Company’s properties of the Company Group will shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the The Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes shall make available to Parent or any Parent, as promptly as reasonably practicable, (i) a list of its Representatives commercial Software code that is incorporated by or from the Company or any its Subsidiaries into the products of the Company and its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements Subsidiaries and that is licensed to Company or its public reporting obligations. All requests for access Subsidiaries by a third party pursuant to this Section 7.4 must be directed to a negotiated license with the General Counsel Company or its Subsidiaries, and (ii) copies of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth applicable licenses; in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.each case,
Appears in 3 contracts
Sources: Merger Agreement (3PAR Inc.), Merger Agreement (Hewlett Packard Co), Merger Agreement (Hewlett Packard Co)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (ciii) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further, however, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access would result contemplated by this Section 6.8 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the disclosure of any material trade secrets of Persons rights and remedies available to Parent and Acquisition Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a manner way that would result not violate the applicable Law, Contract or obligation or to waive such a privilege, including, to the extent practicable, by providing such information in any redacted form as necessary to preserve such trade secrets no longer being protected as a privilege or comply with such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent otherwise make appropriate substitute disclosure arrangements, to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationextent possible. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.8 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the properties of the Company Group will or any of its Subsidiaries shall be subject to the terms and conditions of any applicable Lease and the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive Phase 1 or Phase 2 environmental assessments or other invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.46.8. Nothing in this Section 6.8 or elsewhere in this Agreement shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company Subsidiaries or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 3 contracts
Sources: Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Cypress Semiconductor Corp /De/), Merger Agreement (Integrated Silicon Solution Inc)
Access. At all times during (a) For purposes of furthering the period commencing with transactions contemplated hereby, each Party shall afford the execution other Party and delivery (i) the officers and employees and (ii) the accountants, consultants, legal counsel, financial advisors and agents and other representatives of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives such other Party reasonable access during normal business hours, upon reasonable advance noticethroughout the period prior to the earlier of the Effective Time and the Termination Date, to the its and its Subsidiaries’ personnel and properties, offices and other facilitiescontracts, Contractscommitments, books and records and personnel of the Company Groupany report, except that the Company may restrict schedule or otherwise prohibit access to any documents other document filed or information received by it pursuant to the extent thatrequirements of applicable Laws and with such additional accounting, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to financing, operating, environmental and other data and information regarding such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected Party as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other handParty may reasonably request. Subject Notwithstanding the foregoing, neither Party shall be required to Section 7.19, nothing in this Section 7.4 will be construed to require afford such access if it would unreasonably disrupt the Company Group operations of such Party or any of its Representatives to prepare any reportsSubsidiaries, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create would cause a material risk violation of damage or destruction any agreement to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent which such Party or any of its Subsidiaries is a party, would cause a risk of a loss of privilege to such Party or any of its Subsidiaries or would constitute a violation of any applicable Law. Neither Party, nor any of their respective officers, employees or Representatives, shall be permitted to perform any onsite procedures (including an onsite study or invasive testing or sampling) with respect to any property of either Party or any of their respective Subsidiaries without the prior written consent of the other Party (which shall not be unreasonably withheld, conditioned or delayed).
(b) The Parties hereto hereby agree that all information provided to them or their respective officers, directors, employees or Representatives in connection with any investigation conducted pursuant to this Agreement and the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel consummation of the Companytransactions contemplated hereby shall be governed in accordance with the confidentiality and non-disclosure agreement, or another person designated by dated as of April 26, 2018, between Rowan and Ensco, as amended (the Company. In “Confidentiality Agreement”), the event that term of which is hereby extended until the Company objects earlier to any request submitted pursuant to this Section 7.4 on occur of (x) the basis of one or more of Effective Time and (y) the matters set forth in clauses (a) to (e) first anniversary following the termination of this Section 7.4, it must do so by providing Parent, Agreement in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate accordance with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightArticle VII.
Appears in 3 contracts
Sources: Transaction Agreement, Transaction Agreement (Ensco PLC), Transaction Agreement (Rowan Companies PLC)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX X and the ClosingAppointment Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (ciii) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access would result contemplated by this Section 6.4 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the disclosure of any material trade secrets of Persons rights and remedies available to Parent and Acquisition Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or to waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.4 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the Company’s properties of the Company Group will shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing. Notwithstanding anything The Company shall make available to the contrary in this AgreementParent, by 11:59 p.m. (Pacific time) on August 23, 2010, (i) a list of commercial Software code that is incorporated by the Company may satisfy or its obligations set forth above Subsidiaries into the products of the Company and its Subsidiaries and that is licensed to Company or its Subsidiaries by electronic means if physical access is not permitted under a third party pursuant to a negotiated license with the Company or its Subsidiaries, and (ii) copies of the applicable Lawlicenses; in each case, excluding “open source” Software and Software licensed pursuant to non-negotiable Contracts (including “shrink-wrap” and “click-through” Contracts). The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right6.4.
Appears in 2 contracts
Sources: Merger Agreement (Dell Inc), Agreement and Plan of Merger (3PAR Inc.)
Access. At all times (a) For purposes of furthering the Transactions, during the period commencing with from the execution and delivery date of this Agreement and continuing until the earlier to occur of Effective Time or, if earlier, the termination of this Agreement pursuant to Article IX and the Closingin accordance with its terms, the Company will shall (and will cause its Subsidiaries toi) afford Parent and its Representatives reasonable access during normal business hours, hours upon reasonable advance noticenotice to the Company, to the its and its Subsidiaries’ officers, employees, properties, offices and other facilitiescontracts, Contractscommitments, books and records and personnel any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws (other than information concerning the value of the Company Group, except that or relating to the Company may restrict or otherwise prohibit access process leading to the negotiation and execution of this Agreement and any communications relating to any documents Company Acquisition Proposal or information Company Competing Transaction) and (ii) use its reasonable best efforts to make available to Parent, during normal business hours and at the Company’s principal place of business or via telephone, the Company’s accountants, consultants, legal counsel, financial advisors and representatives, in each case to the extent that, (a) any applicable Law or regulation requires reasonably requested by Parent in order to discuss the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk affairs of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other handSubsidiaries. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this AgreementDuring such period, the Company may satisfy shall, and shall cause its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant Subsidiaries to, without limitation to the access contemplated by this Section 7.4preceding obligations, other than any information that has been made, is or becomes make available to Parent a copy of any written communication (and a summary of any material oral communication) received from the FDA or any similar Governmental Authority promptly after receipt of its Representatives such communication, shall provide Parent with a reasonable opportunity to review and comment on such filing or submission, and shall give reasonable consideration to all comments reasonably proposed by or from Parent. All access pursuant to this Section 6.3(a) shall be (i) conducted in such a manner as not to interfere unreasonably with the normal operations of the Company or any of its Subsidiaries and (ii) coordinated through the Chief Executive Officer of the Company or a designee thereof.
(b) Notwithstanding anything to the contrary contained in this Section 6.3, neither the Company nor its Subsidiaries nor their respective Representatives shall be required to provide any access, or make available any document, correspondence or information, if doing so would, in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel reasonable judgment of the Company’s outside legal counsel, (i) jeopardize the attorney-client privilege of the Company or any of its Subsidiaries or (ii) conflict with any (A) Law applicable to the Company or any of its Subsidiaries or the assets, or another person designated by operation of the Company. In the event that business, of the Company objects or any of its Subsidiaries or (B) Material Company Contract to which the Company or any request submitted pursuant to this Section 7.4 on of its Subsidiaries is party or by which any of their assets or properties are bound; provided, however, that in such instances the basis of one or more Company shall inform Parent of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the general nature of what is the information being prevented and/or withheld and the reasons thereforbasis for withholding and, and prior to preventing such access or withholding such information or documents from Parent and its Representativesupon Parent’s request, the Company shall reasonably cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access provide such information, in whole or disclosurein part, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove that would not result in any of the basis for outcomes described in the objectionforegoing clauses (i) and (ii), including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect using commercially reasonable efforts to seek consent from the contractual termination or acceleration right contemplated by clause applicable third party to any such Material Company Contract under which disclosure is prohibited.
(c) No investigation by Parent or its Representatives shall affect or be deemed to modify or waive the representations and warranties of the Company set forth in this Section 7.4Agreement.
(d) The Parties hereby agree that all information provided to them or their respective Representatives in connection with this Agreement and the consummation of the Transactions shall be governed in accordance with the Mutual Non-Disclosure Agreement, obtaining a waiver dated as of January 31, 2014, as amended on August 7, 2015, between the Company and Sun Pharmaceutical Industries Ltd. (the “Confidentiality Agreement”), which shall continue in full force and effect in accordance with respect to or consent under such contractual termination or acceleration rightits terms.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticenotice provided in writing to the General Counsel of the Company, or another Person designated in writing by the Company, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound as of the date of this Agreement or entered into after the date of this Agreement in the ordinary course of business would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including any source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof the Subsidiaries of the Company or any third Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided that in each case described in clauses (a) through (d) the Company shall cooperate with Parent and use its commercially reasonable efforts to develop alternative methods of providing such information in a manner that would not result in any violation, default, prejudice or loss of privilege. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.8 shall be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawor other testing or sampling of any environmental media. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent Parent, Merger Sub or any of its their respective Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right6.8.
Appears in 2 contracts
Sources: Merger Agreement (Liberty Tax, Inc.), Merger Agreement (Vitamin Shoppe, Inc.)
Access. At all times during (a) For purposes of furthering the period commencing with Mergers but subject to the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingfollowing sentence, the Company will (shall, and will shall cause its the Company Subsidiaries to, (x) afford Parent and its Representatives reasonable access during normal business hours, hours and upon reasonable advance notice, throughout the period prior to the Effective Time, to its and its Subsidiaries’ personnel, properties, offices and other facilities, Contracts, books and records and any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and, during such period and (y) make available to Parent and its Representatives all other available information concerning its business, developed and in-development products, properties and personnel as Parent may reasonably request. Parent will use its reasonable best efforts to minimize any disruption to the businesses of the Company Groupthat may result from such requests for access, except data and information. The Company shall, and shall cause its Subsidiaries to, without limitation to the preceding obligations, make available to Parent and its Representatives (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 U.S. federal securities laws (other than reports or documents that the Company may restrict or otherwise prohibit access is not permitted to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such disclose under applicable Law following such disclosure; or Law) and (eii) such documents or information are reasonably pertinent to any adverse Legal Proceeding a copy of all substantive correspondence between the Company and or any of its AffiliatesSubsidiaries, on the one hand, and Parent and its Affiliatesany party to a Contract, on the other hand. Subject , with regard to Section 7.19any material action, nothing consent, approval or waiver that is required to be taken or obtained with respect to such Contract in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere connection with the conduct consummation of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company GroupMergers. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this AgreementThe foregoing notwithstanding, the Company may satisfy its obligations set forth above by electronic means shall not be required to provide access to or make available to any person any document or information if physical access is not permitted under applicable Law. The terms and conditions doing so would, in the reasonable judgment of the Confidentiality Agreement will apply to Company, as applicable, after consultation with its outside counsel, (A) violate any information obtained by Parent or any Law, (B) result in a violation of its Representatives in connection a confidentiality agreement with any investigation conducted pursuant a third party entered into prior to the access contemplated by date of this Section 7.4Agreement or (C) jeopardize the attorney-client, attorney work product or other than any information that has been made, is or becomes available to Parent or any legal privilege of its Representatives by or from the Company or any of its Subsidiaries.
(b) No investigation by the Company or Parent or their respective Representatives shall affect or be deemed to modify or waive the representations and warranties of the other Party set forth in the ordinary course of this Agreement.
(c) The Parties hereby agree that all information provided to them or their ongoing business arrangements consistent with past practice, including respective Representatives in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to Agreement and the General Counsel consummation of the CompanyMergers shall be governed in accordance with the confidentiality agreement, or another person designated dated as of March 20, 2017, by the Company. In the event that and between the Company objects to any request submitted pursuant to this Section 7.4 on and Parent (the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Ixys Corp /De/), Merger Agreement (Littelfuse Inc /De)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.8. All requests for access pursuant to this Section 7.4 6.8 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (Cvent Inc), Merger Agreement (Tibco Software Inc)
Access. At all times during the period commencing with the execution The Company and delivery of this Agreement Parent agree that upon reasonable notice, and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingexcept as may otherwise be required or restricted by applicable Law, the Company will each shall (and will shall cause its Subsidiaries to) afford Parent the other’s officers, employees, counsel, accountants and its Representatives other authorized representatives reasonable access access, during normal business hours, upon reasonable advance noticehours throughout the period prior to the Effective Time, to the its executive officers, to its properties, offices and other facilitiesbooks, Contracts, books contracts and records and, during such period, each shall (and each shall cause its Subsidiaries to) furnish promptly to the other all information concerning its business, properties, personnel and Litigation Claims as may reasonably be requested but only to the extent such access does not unreasonably interfere with the business or operations of such party; provided that no investigation pursuant to this Section 7.1 shall affect or be deemed to modify any representation or warranty made by the Company, Parent, Merger Sub or Sister Subsidiary in this Agreement. Without limiting the immediately preceding sentence, the Company shall reasonably cooperate with Parent in connection with a third-party compliance audit of the Company Groupat the expense of Parent. All requests for information made pursuant to this Section 7.1 shall be directed to an executive officer of Parent or the Company, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant toas applicable, or give any its financial advisor or such other Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will may be construed to require the Company Group or any designated by either of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationexecutive officers. Any investigation conducted pursuant to All such information shall be governed by the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or Agreement. Notwithstanding the foregoing, this Section 7.1 shall not require any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4Parent, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant respective Subsidiaries to this Section 7.4 must be directed to the General Counsel of the Companypermit any inspection, or another person designated by to disclose any information, that would result in (i) the Company. In waiver of any applicable attorney-client or similar privilege, (ii) a violation of any applicable Law (including antitrust Laws), or (iii) the event disclosure of trade secrets or other confidential information of third party to whom such party owes a duty of confidentiality, provided that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in each party shall use its reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent best efforts to make appropriate substitute disclosure arrangements under circumstances such that the foregoing restrictions would not reasonably be expected to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightbe applicable.
Appears in 2 contracts
Sources: Merger Agreement (Biomimetic Therapeutics, Inc.), Merger Agreement (Wright Medical Group Inc)
Access. At (a) Subject to all times during applicable Laws (including any banking rules, regulations of any Governmental Authority and any requirements in relation to the period commencing with Banking Licenses) and the execution and delivery other provisions of this Agreement and continuing Section 7.6, until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingEffective Time, the Company will (shall upon reasonable prior notice provided by the Parent Group and will cause its Subsidiaries to) at the Parent Group’s sole expense, afford Parent Group’s officers and its other authorized Representatives reasonable access during normal business hoursaccess, upon at all reasonable advance notice, times to the Company’s or its Subsidiaries’ (as applicable) Contracts, books and records (in each case, whether in physical or electronic form) and officers, as well as properties, offices and other facilities, Contractsand, all other information and documents concerning its business, financial condition and operations, properties and personnel as Parent Group may reasonably request; provided, that with respect to any discussions regarding future employment terms and any Banking Licenses, such access shall be done in coordination with the Company, provided further, that any such access or furnishing of information shall be under the supervision of the Company’s personnel and in such a manner as not to interfere with the normal operations of the Company and its Subsidiaries.
(b) Without limiting the foregoing, the Company will provide to Parent Group, simultaneously with their provision of the same to any shareholder of the Company, with a copy of the true and correct unaudited consolidated statements of financial position and related consolidated statements of income and cash flows of the Company and its Subsidiaries for the most recent month-end prepared using the books and records and personnel of the Company Groupand its Subsidiaries delivered to the shareholders after the date hereof. [***] Certain information in this document has been excluded pursuant to Regulation S-K, except Item 601(b)(10). Such excluded information is both (i) not material and (ii) the type that the Registrant treats as private or confidential.
(c) Notwithstanding anything to the contrary in this Agreement, nothing in this Section 7.6 shall require and shall not be construed to require the Company to provide the Parent Group or its Affiliates any access or furnish any such information that the Company may restrict reasonably believes would (i) result in the disclosure of any trade secrets of any third parties or otherwise prohibit access breach of the terms of any confidentiality obligations, to which the Company or any documents or information of its Subsidiaries is bound, in any agreement with a third party entered into prior to the extent thatdate of this Agreement, (aii) result in a violation of, or contravene, any applicable Law Laws, fiduciary duty or regulation requires Contract of the Company Group or its Subsidiaries, (iii) compromise or constitute a waiver of any attorney-client or attorney work product privilege or other legal privilege of the Company or its Affiliates, and all such information that is entitled to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any protection under the attorney-client privilege, work product doctrine or other applicable privilege applicable shall remain entitled to such documents or information; (c) access to a Contract to which protection under these privileges, this Agreement, and under the Company Group is a party or otherwise bound would violate or cause a default pursuant tojoint defense doctrine, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (div) access would result in the disclosure of any material trade secrets of Persons in a manner sensitive or personal information that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between expose the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementliability, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4provided, other than any information that has been madehowever, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to shall notify Parent Group when information or records are being withheld because of restrictions that are based on any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in foregoing clauses (ai) to through (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightiv).
Appears in 2 contracts
Sources: Merger Agreement (Shift4 Payments, Inc.), Merger Agreement (Shift4 Payments, Inc.)
Access. At all times during (a) During the period commencing with from the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and in accordance with its terms or the ClosingEffective Time, upon reasonable prior notice, the Company will shall (at Parent’s sole cost and will cause its Subsidiaries toexpense) (i) afford Parent and its Representatives that need to know such information, reasonable access in a manner that does not unreasonably interfere with the business of the Company and its Subsidiaries, during normal business hours, upon reasonable advance notice, to the Company’s and its Subsidiaries personnel, properties, offices and other facilities, Contracts, books and records and personnel (ii) furnish promptly to Parent all available information concerning its business as Parent may reasonably request, in the case of each of clause (i) and (ii), for the purpose of consummating the Transactions and Financing; provided, however, that the Company shall not be required to permit any inspection or provide other access, or to disclose any information, that in the reasonable judgment of the Company Group, except that would: (A) violate any obligation of the Company may restrict with respect to confidentiality or otherwise prohibit access to any documents or information to the extent that, privacy; (aB) any applicable Law or regulation requires jeopardize protections afforded the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any under the attorney-client privilege, the attorney work product doctrine or other similar legal privilege applicable to such documents or informationprotection; (cC) access to a Contract to which the Company Group is a party violate any Laws; or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (dD) access would result in the disclosure of (v) any material trade secrets of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosure; Subsidiary of the Company or any third party, (ew) such competitively sensitive information, (x) information concerning the valuation of the Company or any of its Subsidiaries, (y) documents or information are that is reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand, or (z) personal information that would expose the Company to the risk of liability; provided, that in each case (other than in the case of (iv)(y)) the Company shall inform Parent of the nature of the information being withheld and shall use its commercially reasonable efforts, at Parent’s sole cost and expense, to make alternative arrangements that would allow Parent (or its applicable Representative) access to such information. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 5.3 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted Neither the Company nor any of its Subsidiaries (or any other person) makes, has made, or shall be deemed to have made, any representation or warranty relating to any information provided pursuant to the access contemplated by this Section 7.4 will be conducted 5.3.
(b) During the period from the date of this Agreement until the earlier of the termination of this Agreement in accordance with its terms or the Effective Time, upon reasonable prior notice, Parent shall (at Company’s sole cost and expense) (i) afford the Company and its Representatives that need to know such information, reasonable access in a manner that does not unreasonably and materially interfere with the conduct of the business of the Parent and its Subsidiaries, during normal business hours, to Parent’s and its Subsidiaries personnel, properties, Contracts, books and records and (ii) furnish promptly to the Company Group all available information concerning its business as the Company may reasonably request, in the case of each of clause (i) and (ii), for the purpose of consummating the Transactions; provided, however, that Parent shall not be required to permit any inspection or create a material risk provide other access, or to disclose any information, that in the reasonable judgment of damage Parent would: (A) violate any obligation of Parent with respect to confidentiality or destruction to privacy; (B) jeopardize protections afforded Parent under the attorney-client privilege, the attorney work product doctrine or similar legal privilege or protection; (C) violate any property applicable Laws; or assets (D) result in the disclosure of (v) any trade secrets of the Company, any Subsidiary of the Company Group. Any access to or any third party, (w) competitively sensitive information, (x) information concerning the properties valuation of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with Subsidiaries, (y) documents or information that is reasonably pertinent to any investigation conducted pursuant adverse Proceeding between the Parent and its Affiliates, on the one hand, and Company and its Affiliates, on the other hand, or (x) personal information that would expose Parent to the risk of liability; provided, that in each case (other than in the case of (iv)(y)) Parent shall inform the Company of the nature of the information being withheld, and shall use its commercially reasonable efforts, at Company’s sole cost and expense, to make alternative arrangements that would allow the Company (or its applicable Representatives) access contemplated by to such information. Nothing in this Section 7.45.3 shall be construed to require the Parent, other than any information that has been made, is or becomes available to Parent of its Subsidiaries or any of its their respective Representatives by to prepare any reports, analyses, appraisals, opinions or from other information. Neither the Company or Parent nor any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practiceSubsidiaries (or any other person) makes, including in connection with Parent’s preparation of its consolidated financial statements has made, or its public reporting obligations. All requests for access shall be deemed to have made, any representation or warranty relating to any information provided pursuant to this Section 7.4 must be directed 5.3.
(c) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the General Counsel attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have a commonality of interest with respect to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or any other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement, and under the joint defense doctrine.
(d) No exchange of information or investigation by Parent or its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of the Company, Company set forth in this Agreement. No exchange of information or another person designated investigation by the Company. In Company or its Representatives shall affect or be deemed to affect, modify or waive the event that representations and warranties of Parent set forth in this Agreement.
(e) Each of Parent and the Company objects hereby agree that all information provided to any request submitted it or its Representatives pursuant to this Section 7.4 on 5.3 shall be governed in accordance with the basis confidentiality agreement, dated as of one or more October 11, 2024, by and between the Company and Parent (the “Confidentiality Agreement”); provided, that the term of the matters set forth Confidentiality Agreement (other than Section 8 thereof, which shall terminate in clauses accordance with its terms) shall be hereby deemed amended to the later of (ai) to the second (e2nd) anniversary of the date of the Confidentiality Agreement and (ii) the date that is one year from the termination of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightAgreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Getty Images Holdings, Inc.), Merger Agreement (Shutterstock, Inc.)
Access. At all times during the period commencing with from the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (shall, and will shall cause each of its Subsidiaries to) , afford Parent Parent, Merger Sub, and its their respective Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices assets, books and other facilitiesrecords, Contracts, books and records facilities and personnel of the Company Group, except and its Subsidiaries; provided that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents held by the Company or information; its Subsidiaries and (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or is otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access contemplated by this Section 6.9 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would result in not violate any applicable Law, Contract or obligation or waive such a privilege. Any investigation conducted pursuant to the disclosure of any material trade secrets of Persons access contemplated by this Section 6.9 shall be conducted in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between does not unreasonably interfere with the conduct of the business of the Company and its AffiliatesSubsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries. Any access to the properties of the Company or any of its Subsidiaries shall be subject to the terms and conditions of any applicable Lease and the Company’s reasonable security measures and insurance requirements. The terms and conditions of the Confidentiality Agreement shall apply to any information obtained by Parent, on Merger Sub or any of their respective Representatives pursuant to the one hand, and Parent and its Affiliates, on the other handaccess contemplated by this Section 6.9. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.9 or elsewhere in this Agreement shall be construed to require the Company Group or Company, any of its Subsidiaries or any Representatives of any of the foregoing to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (Cohu Inc), Merger Agreement (Xcerra Corp)
Access. At all times during the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingAcceptance Time, the Company will (and will cause its Subsidiaries to) shall afford LKQ, Parent and its Representatives their financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) granting such access would violate any obligations of the Company or any of its Subsidiaries with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any of its Subsidiaries is a party, (iii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (civ) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further, that no information or knowledge obtained by LKQ or Parent in any investigation conducted pursuant to the access would result contemplated by this Section 7.7 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the disclosure of any material trade secrets of Persons rights and remedies available to LKQ, Parent and Acquisition Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its commercially reasonable efforts to communicate the applicable information to LKQ or Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or to waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 7.7 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the properties of the Company Group will or any of its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing without the Company’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed if any noninvasive diligence or testing recommends or otherwise warrants invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law). The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.47.7. Nothing in this Section 7.7 or elsewhere in this Agreement shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company Subsidiaries or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 2 contracts
Sources: Merger Agreement (LKQ Corp), Merger Agreement (Coast Distribution System Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingInterim Period, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material reasonably likely risk of waiving (or otherwise jeopardize) any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the any Company Group Member is a party or otherwise bound would violate or cause a material default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) in the Company’s reasonable, good faith discretion, restricting or prohibiting access is advisable in connection with any COVID-19 Measures; (f) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; or (g) subject to compliance with (and without limiting) the relevant provisions of Section 5.3, such documents or information relate to an Acquisition Proposal or a Company Board Recommendation Change or the actions of the Company Board (or a committee thereof) with respect thereto; provided that with respect to the items noted in the preceding clauses (a) through (f), the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall use commercially reasonable efforts to allow the disclosure of such information (or as much of it as possible under the circumstances) in a manner that would not violate any of clauses (a) through (f). Subject Any information so disclosed shall be disclosed subject to Section 7.19, nothing execution of a joint defense agreement in customary form. Nothing in this Section 7.4 6.8 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any such access pursuant to this Section 6.8 shall be conducted at Parent’s sole cost and expense under the supervision of appropriate personnel of the Company Group. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company GroupCompany. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.8. All requests for access pursuant to this Section 7.4 6.8 must be directed to the General Counsel (or comparable position) of the Company, or another person designated in writing by the Company. In the event that Nothing in this Section 6.8 shall require the Company objects to permit the inspection of, or to disclose, any request submitted pursuant information regarding or related to this Section 7.4 on the basis of one or more deliberations of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, Board with respect to the contractual termination or acceleration right transactions contemplated by clause (c) of this Section 7.4Agreement, obtaining a waiver with respect the entry into this Agreement or any materials provided to or consent under such contractual termination or acceleration rightthe Company Board in connection therewith.
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (STAMPS.COM Inc)
Access. At all times during During the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX X and the ClosingEffective Time, the Company will (shall, and will shall cause its Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group or its Subsidiaries to restrict or otherwise prohibit access to such documents or information; , (bii) access to such documents or information would give rise reasonably be expected to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; information or (eiii) such documents or information are reasonably pertinent relate to any adverse Legal Proceeding between the evaluation or negotiation of this Agreement, the transactions contemplated hereby or, subject to Section 7.2, an Acquisition Proposal or Superior Proposal. In the event that the Company and does not provide access or information in reliance on clauses (i) or (ii) of the preceding sentence, it shall use its Affiliates, on reasonable best efforts to communicate the one hand, and applicable information to Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group a way that would not violate any applicable Law or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationwaive such a privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 8.5 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will or its Subsidiaries, shall be subject to the Company’s and its Subsidiaries’ reasonable security measures and insurance requirements requirements, and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary Company’s prior written consent, in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawsole discretion. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is 8.5. Nothing in this Section 8.5 or becomes available elsewhere in this Agreement shall be construed to Parent or any of its Representatives by or from require the Company or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information it would not otherwise prepare in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightbusiness.
Appears in 2 contracts
Sources: Transaction Agreement (Verona Pharma PLC), Transaction Agreement (Verona Pharma PLC)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until Until the earlier to occur of the termination of this Agreement pursuant to Article IX VII and the ClosingEffective Time, the Company will (and will cause shall afford Parent, its Subsidiaries to) afford Parent Affiliates and its Representatives financing sources and their respective financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance noticeprior notice provided to the Company’s Chief Executive Officer and Chief Financial Officer, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupas Parent may reasonably request; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such ContractContract (it being agreed that the Company and Parent shall cooperate in good faith to design and implement alternative procedures to enable Parent to evaluate any such Contract without causing a violation or causing a default thereunder or giving any third party a right to terminate or accelerate the rights thereunder); or (d) access would result such disclosure relates to individual performance or personnel evaluation records, medical histories or other personnel information that in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between Company’s good faith opinion could subject the Company or any of its Subsidiaries to liability; and its Affiliatesprovided, on the one handfurther, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, that nothing in this Section 7.4 will 5.8 shall be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 5.8 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the Company’s properties of the Company Group will shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent Parent, its Affiliates and its financing sources or any of its Representatives their respective financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right5.8.
Appears in 2 contracts
Sources: Merger Agreement (Valley Telephone Co., LLC), Merger Agreement (Knology Inc)
Access. At all times during (a) From the period commencing with the execution and delivery of this Agreement and continuing date hereof until the earlier to occur Closing Date, Seller shall, at the prior written request of the termination of this Agreement pursuant to Article IX and the ClosingBuyer, the Company will (and will cause its Subsidiaries toi) afford Parent give Buyer and its Representatives Representatives, who are bound by the Mutual Confidentiality Agreement, reasonable access during normal business hours, upon reasonable advance notice, Working Hours to the offices and properties, offices and other facilities, Contracts, to copies of books and records and personnel records, of the Company Group, except that Group subject in all respects to any and all restrictions and protections related to the COVID-19 virus (or any variant or strain thereof) applicable to the Company may restrict Group or otherwise prohibit access that Seller and the Company Group have in effect; (ii) furnish to Buyer and its Representatives, who are bound by the Mutual Confidentiality Agreement, such financial and operating data and any documents or other information relating to the extent thatCompany Group and in the possession of Seller or the Company Group members as such Persons may reasonably request; and (iii) instruct the employees, (a) any applicable Law or regulation requires counsel and financial advisors of the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result cooperate with Buyer in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any investigation pursuant to this Section 5.04 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Company Group or to violate any policies and procedures related to the COVID-19 virus (or any variant or strain thereof) that Seller or the Company Group has in effect or as required by a Governmental Authority or state Governor. Notwithstanding the foregoing, (A) Seller shall not be required to provide or cause to be provided access to or disclose or cause to be disclosed information where such access or disclosure would jeopardize the attorney-client or other privilege, contravene any Applicable Law or Contract or contravene any confidentiality undertaking; and (B) prior to the Closing Date and unless otherwise expressly required by any Governmental Authority, Buyer shall have no right to perform or cause to be performed any invasive or subsurface investigations of the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this AgreementGroup, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions including any sampling or testing of the Confidentiality Agreement will apply air, soil, surface water, groundwater, building materials or other environmental media, unless Seller consents in writing to any information obtained by Parent or any of its Representatives such investigations, which consent may be withheld in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with ParentSeller’s preparation of its consolidated financial statements or its public reporting obligationssole discretion. All requests for access information provided or obtained pursuant to this Section 7.4 must 5.04 shall be directed to kept confidential by Buyer and its Representatives in accordance with the General Counsel of Mutual Confidentiality Agreement.
(b) From the Companydate hereof until the Closing Date, without Seller’s prior written consent, Buyer shall not, and shall cause its Affiliates not to, contact any customers, vendors or suppliers of, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representativesother third parties having business relationships with, the Company Group members, provided that if Seller provides its written consent, any such contact shall cooperate be conducted in compliance with Parent the terms of the Mutual Confidentiality Agreement and Representatives of Seller shall be entitled to make appropriate substitute arrangements to permit reasonable substitute access notice of, and participation in, all such meetings. Notwithstanding the foregoing, this Section 5.04(b) shall not restrict Buyer or disclosure, including through the use of reasonable best efforts to take its Affiliates from any such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect contact does not relate to the contractual termination Company Group, this Agreement or acceleration right the transactions contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration righthereby.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Fortress Transportation & Infrastructure Investors LLC), Membership Interest Purchase Agreement (United States Steel Corp)
Access. At all times during the period commencing (a) Subject to compliance with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingapplicable Laws, the Company will (shall and will shall cause its Subsidiaries to) to afford to Parent and to its Representatives officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (collectively, “Representatives”) reasonable access access, solely to the extent in furtherance of the consummation of the Mergers and the other transactions contemplated hereby or integration planning relating thereto, during normal business hours, upon on reasonable advance notice, throughout the period prior to the earlier of the First Effective Time and the Termination Date, to the Company’s and its Subsidiaries’ businesses, properties, offices and other facilitiespersonnel, Contractsagents, contracts, commitments, books and records records, and personnel during such period, the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of Parent, furnish promptly to the Company information concerning the Mergers as may be reasonably requested by Company, and (II) in the case of the Company GroupCompany, except furnish promptly to Parent all information concerning the Mergers as may reasonably be requested by Parent; provided that no investigation pursuant to this Section 5.3 shall affect or be deemed to modify any representation or warranty made by the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; Parent.
(b) The foregoing provisions of this Section 5.3 notwithstanding, neither the Company nor Parent shall be required to afford such access or furnish such information if it would unreasonably disrupt the operations of such party or any of its Subsidiaries, would cause a violation of any agreement to which such party or any of its Subsidiaries is a party, would result in a loss of privilege or trade secret protection to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant toany of its Subsidiaries, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant litigation or similar dispute between the parties hereto, would constitute a violation of any applicable Law or result in the disclosure of any personal information that would expose the such party to the access contemplated by this Section 7.4, other than any information that has been made, is risk of liability or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Companycompetitively sensitive information. In the event that Parent or the Company objects to any request submitted pursuant to and in accordance with this Section 7.4 5.3 and withholds information on the basis of one the foregoing sentence, the Company or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detailas applicable, shall inform the other party as to the general nature of what is being prevented and/or withheld and the reasons therefor, Company and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent use reasonable best efforts to make appropriate substitute arrangements to permit reasonable substitute access or disclosuredisclosure that does not suffer from any of the foregoing impediments, including through the use of reasonable best efforts to take (i) obtain the required consent or waiver of any third party required to provide such actions information and (ii) implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing disclosure of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room proceduresprocedures (including as set forth in the Clean Team Agreement), redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to if the contractual termination parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or acceleration right contemplated by clause jeopardizing such privilege or otherwise implicate any of the foregoing impediments.
(c) Each of the Company and Parent hereby agrees that all information provided to it or any of its Representatives in connection with this Section 7.4Agreement and the consummation of the transactions contemplated hereby shall be deemed to be “Confidential Information,” as such term is used in, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightand shall be treated in accordance with, the confidentiality agreement, dated as of May 19, 2025, between the Company and Parent (the “Confidentiality Agreement”) and, as applicable, the Clean Team Confidentiality Agreement, dated as of July 20, 2025, between the Company and Parent (the “Clean Team Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Union Pacific Corp), Merger Agreement (Norfolk Southern Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, in each case, solely for purposes of consummating the Merger (including for integration planning), except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.7 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.7 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawlaw. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.46.7, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations, or that Parent receives or has a right to receive in connection with any franchise, development or other commercial agreement by and between Parent or any of its Affiliates, on the one hand, and the Company or any of its Affiliates, on the other hand. All requests for access pursuant to this Section 7.4 6.7 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (Restaurant Brands International Limited Partnership), Merger Agreement (Carrols Restaurant Group, Inc.)
Access. At all times during During the period commencing with from the execution and delivery date of this Agreement and continuing until through the earlier to occur of the Effective Time or the termination of this Agreement pursuant to Article IX Section 8.1 (the “Pre-Closing Period”), and upon reasonable advance notice to the ClosingCompany, the Company will (and will cause its Subsidiaries to) afford shall provide Parent and its Parent’s Representatives with reasonable access during normal business hours, upon reasonable advance notice, hours to the Company’s and each Company Subsidiary’s books and records, facilities, properties, offices contracts, documents and other facilities, Contracts, books insurance policies for the purpose of enabling Parent to verify the accuracy of the Company’s representations and records warranties contained in this Agreement; provided that any such access shall be conducted at Parent’s expense and personnel in such a manner as to maintain the confidentiality of any confidential information of the Company Group, except that the Company may restrict or otherwise prohibit access and not to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct regular operations of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company GroupSubsidiaries. Any access to During the properties Pre-Closing Period, Parent may, upon the prior written approval of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this AgreementChief Executive Officer or Chief Financial Officer, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions contact any employee of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any Company Subsidiary directly, provided that such contact is for informational purposes only and does not unreasonably interfere with such employee’s ongoing responsibilities to the Company or any Company Subsidiary. Nothing herein shall require either the Company or any Company Subsidiary to disclose any information to Parent if such disclosure would, in its sole and absolute discretion (i) jeopardize any attorney-client or other legal privilege or (ii) contravene any applicable Law, fiduciary duty or binding agreement entered into prior to the date of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, this Agreement (including in connection with Parent’s preparation of its consolidated financial statements any confidentiality agreement to which it or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the CompanyAffiliates is a party), or another person designated by the Company. In the event provided that the Company objects shall immediately (and in all cases prior to any request submitted pursuant to this Section 7.4 on the basis of one or more Closing) notify Parent and Parent’s Representatives of the matters set forth in clauses (a) to (e) fact of this Section 7.4such non-disclosure, it must do so by providing Parent, in reasonable detail, and of the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, materials not disclosed (without disclosing the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through substance of the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightwithheld information).
Appears in 2 contracts
Sources: Merger Agreement (Smith & Wollensky Restaurant Group Inc), Agreement and Plan of Merger (Smith & Wollensky Restaurant Group Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingUpon reasonable advance written notice, the Company will shall (and will shall cause its Subsidiaries to) afford Parent and its Representatives Parent’s representatives reasonable access access, during normal business hours, upon reasonable advance noticehours throughout the period prior to the Effective Time, to the Acquired Companies’ employees, customers, vendors, partners, properties, offices and other facilitiesbooks, Contractsreal properties, books and records and personnel contracts and, during such period, the Company shall furnish promptly to Parent all available information concerning its business as Parent may reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information, that in the reasonable judgment of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, could: (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons Third Parties; (b) violate any obligation of the Acquired Companies with respect to confidentiality, non-disclosure or privacy; (c) jeopardize protections afforded the Company under the attorney-client privilege or the attorney work product doctrine; (d) violate any Law (it being agreed that, with respect to clauses (a), (b), (c) or (d), that the Parties shall use their reasonable best efforts to cause such information to be provided in a manner that would not result in any such trade secrets no longer being protected as such under applicable Law following such disclosurejeopardy, contravention or violation); or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group Acquired Companies’ business. No investigation pursuant to this Section 6.4 shall affect or create a material risk of damage be deemed to modify any representation or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary warranty in this Agreement, Agreement of any Party or otherwise limit or affect the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes remedies available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 6.4 must be directed to the General Counsel Chief Executive Officer of the Company, Company or another person designated in writing by the Company. In Notwithstanding anything herein to the event that contrary, Parent and Acquisition Sub shall not, and shall cause their respective representatives not to, contact any customer or supplier of the Company objects in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement without the Company’s prior consent (such consent not to be unreasonably withheld, conditioned or delayed), and Parent and Acquisition Sub acknowledge and agree that any request submitted such contact shall be arranged by and with a representative of the Company participating. All information obtained by Parent and its representatives pursuant to this Section 7.4 on the basis of one or more 6.4 shall be treated as “Evaluation Material” of the matters set forth in clauses (a) to (e) Acquired Companies for purposes of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Amplify Snack Brands, INC), Merger Agreement (Hershey Co)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access (under Company supervision) during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) such documents or information relate to the negotiation and execution of this Agreement, are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject ; or relate to, subject to Section 7.195.3, nothing an Acquisition Proposal. Nothing in this Section 7.4 6.8 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.8. All requests for access pursuant to this Section 7.4 6.8 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (Monotype Imaging Holdings Inc.), Merger Agreement (Nutraceutical International Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the Closing, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives Purchaser reasonable access access, consistent with applicable Law, during normal business hours, upon on reasonable advance noticenotice provided in writing to the General Counsel of the Company, or another Person designated in writing by the Company, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; information (in which case, the Company shall use reasonable best efforts to provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) in compliance with such applicable Law or Contract), (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; information (in which case, the Company shall use reasonable best efforts to provide such access as can be provided (or otherwise convey such information regarding the applicable matter as can be conveyed) without jeopardizing such privilege), (c) access such disclosure relates to a Contract to which interactions with other prospective buyers or transaction partners of the Company Group is a party or otherwise bound would violate or cause a default pursuant tothe negotiation of this Agreement and the transactions contemplated hereby, or give any Person information relating to the right analysis, valuation or consideration of the Transactions or the other transactions contemplated hereby, in each case, subject to terminate Section 5.3, which shall not be limited by this Section 6.7 or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other handthird Persons. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.7 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions appraisals or other informationopinions. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.7 shall be conducted in a manner that is consistent with all applicable COVID-19 Measures and (i) that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group will and its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything or subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media of the sort generally referred to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawas a “Phase II” environmental investigation. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent Purchaser or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.7. All requests for access pursuant to this Section 7.4 must be directed Notwithstanding anything to the General Counsel of the Companycontrary in this Agreement, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters each Party may satisfy its obligations set forth in clauses (a) to (e) of this Section 7.4, it must do so 6.7 by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such electronic means if physical access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent would not be permitted under such contractual termination or acceleration rightapplicable COVID-19 Measures.
Appears in 2 contracts
Sources: Series B 1 Convertible Preferred Stock Purchase Agreement (Fluidigm Corp), Series B 2 Convertible Preferred Stock Purchase Agreement (Fluidigm Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX X and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance notice, to the properties, offices books and other facilitiesrecords, Contracts, books personnel and records and personnel commercial counterparties of the Company Group, including with respect to commercial counterparties in the manner specified in Section 8.6 of the Company Disclosure Letter, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries or any third Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided, however, that the Company will notify Parent in reasonable detail of the circumstances giving rise to any non-disclosure pursuant to the foregoing and the Company shall use commercially reasonable best efforts, and shall cause the Company’s Subsidiaries to use commercially reasonable best efforts, to provide such access or disclosure of such information in the cases of the foregoing sections (a), (b), (c) or (d) to the extent legally permissible. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 8.6 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 8.6 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations8.6. All requests for access pursuant to this Section 7.4 8.6 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Revance Therapeutics, Inc.), Merger Agreement (Revance Therapeutics, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (shall, and will shall cause its Subsidiaries to) , afford Parent and its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records records, officers, agents and personnel of the Company Groupand its Subsidiaries and the Company shall, except and shall cause its Subsidiaries to furnish to Parent promptly, such information concerning the Company and its Subsidiaries business, personnel, assets, liabilities and properties as Parent may reasonably request; provided, however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Order requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (b) access to such documents or information would give rise to a material risk would, in the Company’s good faith opinion after consultation with outside legal counsel, result in the loss of waiving any attorney-client privilege, work product doctrine or other applicable legal privilege applicable to such documents or information; , (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; Contract (provided that such contract is listed on Section 3.12 of the Company Disclosure Letter), or (d) access would result in subject to the disclosure terms of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (eSection 5.2(b) and Section 5.2(c), such documents or information are reasonably pertinent relate directly or indirectly to any adverse Legal Proceeding between Acquisition Proposals that the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives may have received from any Person or any discussions or negotiations that the Company or any of its Representatives is having with respect to prepare any reportsAcquisition Proposal or any other proposals that could lead to an Acquisition Proposal; and provided further, analysesthat no information or knowledge obtained by Parent in any investigation conducted pursuant to the access contemplated by this Section 5.5 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. In the event that any of the Company or its Subsidiaries does not provide access or information in reliance on the preceding sentence, appraisalsit shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate the applicable Law, opinions Order, Contract or other informationobligation or waive such a privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 5.5 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries, or create a material an unreasonable risk of material damage or destruction to any material property or assets of the Company Groupor any of its Subsidiaries. Any access to the Company’s or its Subsidiaries’ properties of the Company Group will shall be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawrequirements. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations5.5. All requests for data and access pursuant under this Agreement shall be made only to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of and through one or more of the matters set forth individuals designated in clauses (a) to (e) writing by an Executive Vice President of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightCompany.
Appears in 2 contracts
Sources: Merger Agreement (3com Corp), Merger Agreement (Hewlett Packard Co)
Access. At all times during From the period commencing with the execution and delivery date of this Agreement and continuing until to the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingEffective Time, the Company will shall, and shall cause each of its subsidiaries and each of their respective Representatives to use reasonable efforts to: (and will cause its Subsidiaries toi) afford provide to Parent and its Merger Sub and their respective Representatives reasonable access during normal business hourshours in such a manner as not to interfere unreasonably with the operation of the business conducted by the Company or any of its subsidiaries, upon reasonable advance noticeprior written notice to the Company, to the officers, employees, auditors, properties, offices and other facilities, Contracts, facilities of the Company and its subsidiaries and to the books and records thereof; and personnel (ii) furnish promptly to Parent and Merger Sub and their respective Representatives such information concerning the business, properties, contracts, assets and liabilities of the Company Groupand its subsidiaries as Parent and Merger Sub or their respective Representatives may reasonably request; provided that the foregoing shall not require the Company or any of its subsidiaries or Representatives to furnish any such materials that are otherwise publicly available; provided, except further, that the Company may restrict shall not be required to (or otherwise prohibit to cause any of its subsidiaries to) afford such access to any documents or furnish such information to the extent that, (a) any applicable Law or regulation requires that the Company Group to restrict or otherwise prohibit access to such documents or information; believes in good faith that doing so would: (bA) access to such documents or information would give rise to result in a material risk loss of waiving any attorney-client privilege, work privilege or work-product doctrine or other privilege applicable to such documents or informationprotection; (cB) access violate any obligations of the Company or any of its subsidiaries with respect to a confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company Group or any of its subsidiaries is a party party; or otherwise bound would violate or cause a default pursuant to(C) breach, contravene, or give violate any Person applicable law (including the right HSR Act or any other antitrust or competition law); provided, further, that the Company shall use commercially reasonable efforts to terminate obtain any consents of third parties that are necessary to allow such information to be disclosed to Parent, Merger Sub and their respective Representatives and shall otherwise use commercially reasonable efforts to allow for such access or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would does not result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; a breach of clauses (A), (B) or (e) C), including pursuant to the use of “clean room” arrangements pursuant to which Representatives of Parent could be provided access to such documents information). Notwithstanding anything contained in this Agreement to the contrary, neither party shall be required to provide any access or make any disclosure to the other pursuant to this Section 5.02 to the extent such access or information are is reasonably pertinent to any adverse Legal Proceeding between a litigation where the Company and or any of its Affiliatesaffiliates, on the one hand, and Parent and or any of its Affiliatesaffiliates, on the other hand, are adverse parties. Subject Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to Section 7.19, nothing in be provided to the other under this Section 7.4 will 5.02 as “Outside Counsel Only Material.” Such materials and information contained therein shall be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant given only to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct outside counsel of the business recipient and will not be disclosed by such outside counsel to employees, officers or directors of the Company Group or create a material risk of damage or destruction to any property or assets recipient unless express permission is obtained in advance from the source of the Company Groupmaterials (Parent or the Company, as the case may be) or its legal counsel. Any access to the Company’s properties of shall not unreasonably interfere with the Company Group will operations thereon, shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive any “invasive” environmental testing. Notwithstanding anything the foregoing, any access to any Leased Real Property shall be subject to the contrary in this Agreement, Company’s reasonable security measures and the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions insurance requirements of the Confidentiality Agreement will apply applicable Lease and shall not include the right to perform any information obtained by Parent “invasive” testing or soil, air or groundwater sampling, including, without limitation, any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightenvironmental site assessment.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Sunedison, Inc.), Agreement and Plan of Merger (Vivint Solar, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article Article IX and the ClosingEffective Time, the Company will (shall, and will shall cause each of its Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand, except during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish promptly to Parent and its Representatives any information concerning its business, Taxes, properties or personnel as Parent may reasonably request, including (a) any report, schedule and other document filed or furnished by it with the SEC and any material communication (including “comment letters”) received by the Company from the SEC in respect of such filings, and (b) internal monthly consolidated financial statements of the Company and its Subsidiaries, to the extent prepared in the ordinary course of business consistent with past practice; provided, however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (ciii) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access would result contemplated by this Section 5.4 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. In the event that the Company does not provide access or information in reliance on the first proviso in the disclosure preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate the applicable Law, Contract or obligation or to waive such a privilege. Subject to compliance with applicable Law, from the date hereof until the earlier of the termination of this Agreement and the Effective Time, the Company shall confer from time to time as reasonably requested by Parent with Parent or its Representatives to discuss any material trade secrets changes or developments in the operational matters of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on general status of the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require ongoing operations of the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationCompany. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will Section 5.4 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the Company’s properties of the Company Group will shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives or employees in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightSection 5.4.
Appears in 2 contracts
Sources: Merger Agreement (Lumenis LTD), Merger Agreement (Lumenis LTD)
Access. At all times during During the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries; provided, except however, that (a) the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation (including any COVID-19 Measures) requires the Company Group or any of its Subsidiaries to restrict or otherwise prohibit access to such documents or information; , (bii) granting such access would violate any obligations of the Company or any of its Subsidiaries with respect to confidentiality to any third party or otherwise breach, contravene or violate, constitute a default under, or give a third party the right to terminate or accelerate an obligation under, any then effective Contract to which the Company or any of its Subsidiaries is a party, (iii) access to such documents or information would give rise reasonably be expected to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; information or (eiv) such documents or information are reasonably pertinent relate to any adverse Legal Proceeding between the evaluation or negotiation of this Agreement, the transactions contemplated hereby or, subject to Section 5.2, an Acquisition Proposal or Superior Proposal, and (b) in each case, such access may be limited to the extent the Company reasonably determines, in light of COVID-19 or any COVID-19 Measures, that such access would jeopardize the health and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require safety of any employee of the Company Group or any of its Representatives Subsidiaries. In the event that the Company does not provide access or information in reliance on (x) clauses (a)(i), (a)(ii) or (a)(iii) of the preceding sentence, it shall use its reasonable best efforts to prepare communicate the applicable information to Parent in a way that would not violate any reportsapplicable Law, analysesContract or obligation or waive such a privilege, appraisalsand (y) clause (b) of the preceding sentence, opinions it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that the Company reasonably determines would not jeopardize the health and safety of any employee of the Company or other informationany of its Subsidiaries. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.6 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or any of its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties or any of the Company Group will its Subsidiaries, shall be subject to the Company’s or any of its Subsidiaries’ reasonable security measures and insurance requirements requirements, and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary Company’s prior written consent, in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawsole discretion. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available 6.6. Nothing in this Section 6.6 shall be construed to Parent or any of its Representatives by or from require the Company or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any new reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 2 contracts
Sources: Merger Agreement (Biogen Inc.), Merger Agreement (Reata Pharmaceuticals Inc)
Access. At all times during the period commencing with the execution (a) The Company shall afford, and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will shall cause its Subsidiaries to) afford Affiliates, agents, and representatives to afford, to Parent and to its Representatives officers, employees, accountants, consultants, legal counsel, financial advisors, prospective financing sources, Affiliates and agents and other representatives (collectively, “Representatives”) reasonable access during normal business hourshours (and at other times as may be mutually agreed), upon reasonable advance noticethroughout the period prior to the earlier of the Effective Time and the Termination Date, to the its and its Affiliates’ officers, employees, accountants, properties, offices and other facilitiescontracts, Contractscommitments, books and records and personnel any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and shall furnish Parent with financial, operating and other data and information as Parent, through its officers, employees or other authorized representatives, may from time to time reasonably request in writing. Notwithstanding the foregoing, the Company shall not be required to afford such access if it would unreasonably disrupt the operations of the Company Groupor any of its Affiliates, except that the Company may restrict or otherwise prohibit access to would cause a violation of any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract agreement to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare Affiliates is a party, or would constitute a violation of any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by , nor shall Parent or any of its Representatives in connection be permitted to perform any onsite procedure (including any onsite environmental study) with respect to any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any property of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practiceAffiliates, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement andexcept, with respect to any on site procedure, with the contractual termination Company’s prior written consent (which consent shall not be unreasonably withheld, delayed or acceleration right conditioned).
(b) Parent hereby agrees that all information provided to it or its Representatives in connection with this Agreement and the consummation of the transactions contemplated by clause this Agreement shall be kept confidential in accordance with the Confidentiality and Nondisclosure Agreement, dated as of May 8, 2007 between the Company and Vestar Capital Partners V, L.P. (cthe “Confidentiality Agreement”) of this Section 7.4, obtaining a waiver with respect which Confidentiality Agreement shall continue to or consent under such contractual termination or acceleration rightapply.
Appears in 2 contracts
Sources: Merger Agreement (Vestar Capital Partners v L P), Merger Agreement (Radiation Therapy Services Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX X and the ClosingEffective Time, the Company will (shall, and will shall cause its each of the Company Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand, except that during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish promptly to Parent and its Representatives any information concerning its business, Taxes, properties or personnel as Parent may restrict reasonably request, including (i) any report, schedule and other document filed or otherwise prohibit access to furnished by it with the SEC and any documents or information material communication (including “comment letters”) received by the Company from the SEC in respect of such filings, and (ii) internal monthly consolidated financial statements of the Company and the Company Subsidiaries, to the extent thatprepared in the Ordinary Course of Business; provided, (a) however, that no information or knowledge obtained by Parent in any applicable Law investigation conducted pursuant to the access contemplated by this Section 5.03 shall affect or regulation requires be deemed to modify any representation or warranty of the Company Group to restrict set forth in this Agreement or otherwise prohibit access impair the rights and remedies available to such documents or information; (b) access Parent and Merger Sub hereunder. Subject to such documents or information would give rise to a material risk compliance with applicable Law, from the Effective Date until the earlier of waiving any attorney-client privilegethe termination of this Agreement and the Effective Time, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party shall confer from time to time as reasonably requested by Parent with Parent or otherwise bound would violate its Representatives to discuss any material changes or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result developments in the disclosure operational matters of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on general status of the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require ongoing operations of the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationCompany. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 5.03 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and the Company Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties or any of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Helix TCS, Inc.), Merger Agreement (Helix TCS, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier (a) The Company shall afford to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and to its Representatives officers, employees, accountants, consultants, legal counsel, financial advisors, prospective financing sources and agents and other representatives (collectively, “Representatives”) reasonable access during normal business hours, upon reasonable advance noticethroughout the period prior to the earlier of the Effective Time and the Termination Date, to the its and its Subsidiaries’ officers, employees, properties, offices and other facilitiescontracts, Contractscommitments, books and records and personnel any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and shall furnish Parent with financial, operating and other data and information as Parent, through its officers, employees or other authorized Representatives, may from time to time reasonably request in writing. Notwithstanding the foregoing, the Company shall not be required to afford such access if it would unreasonably disrupt the operations of the Company Groupor any of its Subsidiaries, except that the Company may restrict or otherwise prohibit access to would cause a violation of any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract agreement to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reportsSubsidiaries is a party, analyses, appraisals, opinions or other information. Any investigation conducted pursuant would cause a reasonable risk of a loss of privilege to the access contemplated by this Section 7.4 will be conducted in Company or any of its Subsidiaries or would constitute a manner that does not unreasonably and materially interfere with the conduct violation of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by , nor shall Parent or any of its Representatives in connection be permitted to perform any onsite procedure (including any onsite environmental study) with respect to any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any property of its Representatives by or from the Company or any of its Representatives in Subsidiaries, except, with respect to any on site procedure, with the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with ParentCompany’s preparation of its consolidated financial statements or its public reporting obligationsprior written consent. All requests for access No investigation pursuant to this Section 7.4 must be directed 5.2 shall affect any representation or warranty in this Agreement of any party hereto or any condition to the General Counsel obligations of the Companyparties hereto.
(b) Parent hereby agrees that all information provided to it or its Representatives in connection with this Agreement and the consummation of the transactions contemplated by this Agreement shall be kept confidential in accordance with the Confidentiality Agreement, or another person designated by the Company. In the event that dated as of November 17, 2007 between the Company objects and Parent (the “Confidentiality Agreement”) which Confidentiality Agreement shall continue to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightapply.
Appears in 2 contracts
Sources: Merger Agreement (Triquint Semiconductor Inc), Agreement and Plan of Merger (Wj Communications Inc)
Access. At all times during (a) The Operator shall, to the period commencing extent possible under any Rights-of-Ways, provide each Owner and its designees reasonable access to the Transmission Facilities site to permit the Owners and their designees to inspect the construction, commissioning, operation and maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities, provided that (i) the Owners and their designees do not interfere with the execution construction, commissioning, operation and delivery maintenance, capital upgrades and improvements to, repair and reconstruction of, and retirement and decommissioning of the Transmission Facilities or any portion thereof or pose a safety hazard; (ii) the Owners and their designees comply with any requirements of any rights-of-ways, license, easement or other real property interest agreement applicable to the Transmission Facilities; and (iii) the Owners and their designees performing the inspection comply with the Operator’s or any other contractor’s safety and security rules, as more specifically set out in the H▇▇▇▇▇▇▇▇ Access Easement Agreement.
(b) Each Owner may, at its cost, at any time during normal business hours and with reasonable prior notice of not less than ten (10) Business Days, but not more often than once in any twelve (12) month period, inspect and audit the books and records of the Operator and any of its Affiliates and any Delegate (and the Operator shall secure such rights for the Owners from its Affiliates and any Delegate) involved in the provision of services pursuant to this Agreement (“Other Costs Records”), to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement as shown on an invoice provided to the Owners pursuant to Section 5.08 within twelve (12) months prior to the date of the audit notice. The Operator shall, and shall cause any of its relevant Affiliates and any Delegate, to keep and maintain all such Other Costs Records to the extent reasonably relating to the determination of the Other Costs for which the Owners are liable under this Agreement and continuing until make such Other Costs Records available to the earlier Owners in accordance with the terms of this Agreement. If any audit discloses that, during such twelve (12)-month period, an overpayment or underpayment of Other Costs has been made by the Non-Operating Owner or the amount of any Other Costs allocated to occur the Owners on an invoice is incorrect, then such overpayment, underpayment or incorrect amount shall be resolved pursuant to Section 5.09. The Owner requesting the audit shall reimburse one hundred percent (100%) of all reasonable costs and expenses (including internal costs and expenses) incurred by or on behalf of the termination of this Agreement pursuant to Article IX Operator and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare Affiliates and any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted Delegate in a manner that does not unreasonably and materially interfere complying with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) provisions of this Section 7.45.06(b), it must do so by providing Parent, provided that the Owner shall not be required to reimburse any such costs if the audit determines that the Owner has made more than Twenty-Five Thousand Dollars ($25,000) in reasonable detail, the nature overpayments of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access Other Costs or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents more than Twenty-Five Thousand Dollars ($25,000) in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect Other Costs have been incorrectly allocated to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightOwner.
Appears in 2 contracts
Sources: Joint Purchase and Sale Agreement (Idacorp Inc), Joint Ownership and Operating Agreement (Idacorp Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records records, facilities and personnel and Representatives of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information, provided that the Company shall take all reasonable steps to permit inspection of or to disclose such information and to respond in a timely manner to all subsequent queries by Parent and its Representatives based on such information on a basis that does not compromise the Company’s attorney-client or other privilege with respect thereto; (c) access to a Contract in effect as of the date of this Agreement to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; or (d) such access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere interferes with the conduct of the business of the Company Group and its Subsidiaries or create creates a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Subject to applicable Law and the immediately preceding sentence, the Company will provide Parent with reports of the Company reasonably requested by Parent. Any access to the properties (including systems) of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementherein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under applicable Law. The terms and conditions Law as a result of the Confidentiality Agreement will apply to any information obtained by Parent COVID-19 or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.COVID-19
Appears in 2 contracts
Sources: Merger Agreement (Activision Blizzard, Inc.), Agreement and Plan of Merger
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives the Purchaser reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticenotice provided in writing to the General Counsel of the Company, or another Person designated in writing by the Company, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, : (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) such disclosure relates to interactions with other prospective buyers or transaction partners of the Company or the negotiation of this Agreement and the transactions contemplated hereby, or information relating to the analysis, valuation or consideration of the Transactions or the transactions contemplated hereby, in each case, subject to Section 5.3, which shall not be limited by this Section 6.7(c); (d) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (de) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (ef) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent the Purchaser and its Affiliates, on the other hand; provided that the Company shall use reasonable best efforts to provide such documents or information in a manner that does not violate or cause a default pursuant to, or give a third Person the right to terminate or accelerate the rights pursuant to, any Contract or cause such documents or information to cease to benefit from legal privilege, including by redacting or obtaining consent in connection therewith. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.7 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions appraisals or other informationopinions. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.7 will be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything or subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media of the sort generally referred to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawas a “Phase II” environmental investigation. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent the Purchaser or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.46.7; provided that, other than notwithstanding any information that has been madeprovision to the contrary in the Confidentiality Agreement, is or becomes available to Parent or the Purchaser and any of its Representatives by or from shall be permitted to disclose to the Other Purchasers and their respective Representatives any information of the Company and discuss with the Other Purchasers and their respective Representatives any information of the Company, in each case, including in connection with the Transactions or any of other Acquisition Proposal, except that the Purchaser or its Representatives shall not disclose to the Other Purchasers or their respective Representatives any Company information that is competitively sensitive and is designated in writing by the Company to be for such Purchaser’s access only (or that otherwise directly relates only to commercial matters or arrangements of the Company in the ordinary course of their ongoing business arrangements consistent with past practice(and not the Transaction or any Acquisition Proposal) and, including in connection with Parent’s preparation of its consolidated financial statements notwithstanding the foregoing, would otherwise be prohibited to be disclosed by the Purchaser or its public reporting obligationsapplicable Affiliates pursuant to another confidentiality agreement between the Purchaser or its Affiliates and the Company or its Affiliates). All requests for access pursuant to this Section 7.4 6.7 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. In Notwithstanding any provision to the event that contrary in the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detailConfidentiality Agreement, the nature of what is being prevented and/or withheld and Confidentiality Agreement shall automatically terminate at the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightClosing.
Appears in 2 contracts
Sources: Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.), Series B Convertible Preferred Stock Purchase Agreement (Comscore, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingThe Company will, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel each of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent thatother Hasbro Companies to, (a) permit the Agent, by its representatives and agents, to inspect any applicable Law or regulation requires of the Company Group properties, including, without limitation, corporate books, computer files and tapes and financial records of each of the Hasbro Companies, to restrict or otherwise prohibit access to examine and make copies of the books of accounts and other financial records of each of the Hasbro Companies at such documents or information; reasonable times and intervals as the Agent may determine, and (b) access permit each of the Banks to discuss the affairs, finances and accounts of each of the Hasbro Companies with, and to be advised as to the same by, their respective officers at such documents or reasonable times and intervals as the Banks may designate. The Banks and the Agent agree that they will treat in confidence all financial information would give rise with respect to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one handSubsidiaries and all information obtained during such inspection or discussion or pursuant to 9.5 which has not become public without violation hereof, and Parent and its Affiliateswill not, on without the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel consent of the Company, disclose such information to any third party or another person designated by any trust or investment employee or trust or investment officer of any Bank, and, if any representative or agent of the Banks or the Agent shall not be an employee of one of the Banks or the Agent or any affiliate of the Banks or the Agent, such designee shall be reputable and of recognized standing and shall agree in writing to treat in confidence the information obtained during any such inspection and, without the prior written consent of the Company, not to disclose such information to any third party or make use of such information for personal gain. In Notwithstanding the event that foregoing, the Company objects hereby authorizes the Agent and each of the Banks to any request submitted disclose information obtained pursuant to this Section 7.4 on the basis of one Agreement to banks or more other financial institutions who are participants or potential participants in or assignees of the matters set forth in clauses Loans made or to be made hereunder (a) provided, that prior to (e) any such disclosure to any such participant, potential participant or assignee, such Person shall have agreed to be bound by the provisions of this Section 7.4, it must do so by providing Parent, 9.10 and 22 pursuant to a confidentiality agreement substantially in reasonable detail, the nature form of what is being prevented and/or withheld Exhibit I hereto and provided to the reasons thereforCompany), and prior to preventing such access where required by applicable law or withholding such information required or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access requested by governmental or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightregulatory authorities.
Appears in 2 contracts
Sources: Line of Credit Agreement (Hasbro Inc), Revolving Credit Agreement (Hasbro Inc)
Access. At all times during the period commencing with the execution 5.2.1 Subject to applicable Law, BHW and delivery of this Agreement and continuing until the earlier BHIL shall afford to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent INFO and its Representatives reasonable accountants, counsel, financial advisors and other representatives (the "INFO Representatives") and INFO shall afford to BHW and BHIL and its accountants, counsel, financial advisors and other representatives (the "BHW Representatives") full access during normal business hours, upon hours with reasonable advance notice, notice throughout the period prior to the Closing Date to all of their respective properties, offices and other facilitiesbooks, Contractscontracts, books commitments and records and personnel of the Company Groupand, except that the Company may restrict or otherwise prohibit access during such period, shall furnish promptly to any documents or information to the extent that, one another:
(a) a copy of each report, schedule and other document filed with or received by any applicable Law or regulation requires of them from the Company Group to restrict or otherwise prohibit access to such documents or information; SEC in connection with the transactions contemplated by this Master Transaction Agreement, and
(b) access such other information concerning their respective businesses, properties and personnel as INFO, BHIL or BHW, as the case may be, shall reasonably request, including all information necessary for either party to such documents or information would give rise to a material risk of waiving make any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere required filings with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this AgreementSEC; provided, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any however, that no investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed 5.2 shall amend or modify any representations or warranties made herein or in the Related Agreements or the conditions to the General Counsel obligations of the Companyrespective parties to consummate the transactions contemplated hereby and thereby.
5.2.2 INFO shall hold and shall use its reasonable commercial efforts to cause the INFO Representatives to hold, and BHW and BHIL shall hold and shall use its reasonable commercial efforts to cause BHW Representatives to hold, in strict confidence all non-public documents and information furnished to INFO or to BHW or BHIL, as the case may be, in connection with the transactions contemplated by this Master Transaction Agreement, except that:
(a) INFO, BHIL and BHW may disclose such information as may be necessary in connection with seeking any required approvals or consents, and
(b) each of INFO, BHIL and BHW may disclose any information that it is required by Law or judicial or administrative order to disclose.
5.2.3 Neither INFO nor BHW nor BHIL shall use or knowingly permit the use of such non-public information or other confidential or proprietary knowledge of the other party for any purpose other than in connection with the transactions contemplated hereby without the prior consent of the other parties hereto; provided, that any information that is otherwise publicly available, without breach of this provision, or another person designated by the Company. has been obtained from a third party without a breach of such third party's duties, shall not be subject to this Section 5.2.
5.2.4 In the event that this Master Transaction Agreement is terminated in accordance with its terms, each party shall promptly redeliver to the Company objects to any request submitted other all non-public written material provided pursuant to this Section 7.4 5.2 and shall not retain any copies, extracts or other reproductions in whole or in part of such written material. In such event, all documents, memoranda, notes and other writings prepared by INFO, BHIL or BHW based on the basis information in such material shall be destroyed (and INFO, BHIL and BHW shall use their respective reasonable commercial efforts to cause their advisors and representatives to similarly destroy their documents, memoranda and notes), and such destruction (and reasonable commercial efforts) shall be certified in writing by an authorized officer supervising such destruction. The provisions of one or more of the matters set forth in clauses (a) to (e) Subsections 5.2.2, 5.2.3 and 5.2.4 shall survive any termination of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightMaster Transaction Agreement.
Appears in 2 contracts
Sources: Master Transaction Agreement (Infonautics Inc), Master Transaction Agreement (Infonautics Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall, subject to restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries or any third Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.7 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.7 shall be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingor subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary and except in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is ordinary course of business and not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant related to the access contemplated by this Section 7.4Transactions, other than Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact any information that has been made, is or becomes available to Parent or any employee of its Representatives by or from the Company or any of its Representatives Subsidiaries not involved in the ordinary course negotiation of their ongoing business arrangements consistent with past practicethe Transactions or any customer, including technology or other partner, vendor or supplier of the Company in connection with Parentthe Merger or any of the other Transactions, in each case, without the Company’s preparation prior written consent, and Parent and Merger Sub acknowledge and agree that any such contact shall be arranged and supervised by Representatives of its consolidated financial statements or its public reporting obligationsthe Company. All requests for access pursuant to this Section 7.4 6.7 must be directed to the General Counsel of the Company or other Person designated by the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (Datto Holding Corp.), Merger Agreement (Datto Holding Corp.)
Access. At all times As necessary during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilities, Contracts, books and records records, Contracts and personnel (including employees and agents) of the Company Groupand its Subsidiaries solely to the extent necessary for the purpose of planning for the potential consummation of the Merger and the operation of the Company following the Closing. Notwithstanding the prior sentence, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk result in the waiver of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries or any third Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided that the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall use its reasonable best efforts to allow the disclosure of such information (or as much of it as possible) in a manner that would not violate any of the foregoing clauses (a) through (e). Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.6 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.6 shall be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group will and its Subsidiaries (x) shall be subject to the Company’s reasonable safety and security measures and insurance requirements and will the terms of any underlying lease thereof, and (y) shall not include any testing, sampling, monitoring or analysis of soil, groundwater, building materials, indoor or ambient air, or other environmental media without the right to perform invasive testingwritten consent of the Company, which may be withheld at the Company’s sole discretion. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations covenants set forth above in this Section 6.6 by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligationsreasonably feasible. All requests for access pursuant to this Section 7.4 6.6 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (Infinera Corp), Merger Agreement (Nokia Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingAcceptance Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; , or (ciii) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant tounder, or give any Person a third party the right to terminate or accelerate the rights pursuant tounder, such Contract; (d) and provided further, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access would result contemplated by this Section 7.8 shall affect or be deemed to modify any representation or warranty of the Company set forth in this Agreement or otherwise impair the disclosure of any material trade secrets of Persons rights and remedies available to Parent and Acquisition Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or to waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 7.8 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the properties of the Company Group will or any of its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary in this AgreementCompany’s prior written consent (which consent shall not be unreasonably withheld, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawconditioned or delayed). The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives financial advisors, business consultants, legal counsel, accountants and other agents and representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.47.8. Nothing in this Section 7.8 or elsewhere in this Agreement shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Subsidiaries or any Representatives of any of the foregoing to prepare any reports, analyses, appraisals, opinions or other information, provided, that the Company shall deliver updates to Parent upon the receipt of any material results or other information regarding the status of the Phase II clinical trial for SGI 110 being conducted by or from on behalf of the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightSubsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Otsuka Holdings Co., Ltd.), Merger Agreement (Astex Pharmaceuticals, Inc)
Access. At all times (a) Upon reasonable notice, each of Parent and the Company shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period commencing prior to the Effective Time, to the their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of Parent and the execution Company shall furnish promptly to the other party all available information concerning its business as Parent or the Company, as the case may be, may reasonably request; provided, however, that each party shall not be required to permit any inspection or other access, or to disclose any information, that in the reasonable judgment of such party would: (i) violate any obligation of such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilege, the attorney work product doctrine or any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and delivery of this Agreement and continuing until (iii) such party shall inform the earlier to occur other party of the termination nature of this Agreement pursuant the information being withheld, and shall use its reasonable best efforts to Article IX make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the Closing, the Company will (and will cause its Subsidiaries to) afford Parent other party. All confidential information obtained by each party and its Representatives reasonable access during normal business hours, upon reasonable advance notice, pursuant to this Section 4.8(a) shall be subject to the properties, offices and other facilities, Contracts, books and records and personnel Confidentiality Agreement so long as it satisfies the definition of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; “Evaluation Material” contained therein.
(b) access To the extent that any of the information or material furnished pursuant to such documents or information would give rise this Agreement may include material subject to a material risk of waiving any the attorney-client privilege, work product doctrine or any other privilege applicable privilege, the parties understand and agree that they have a commonality of interest with respect to such documents matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or information; diminish in any way the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or any other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and the joint defense doctrine.
(c) access to a Contract to which the Company Group is a party No exchange of information or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its their respective Representatives in shall affect or be deemed to affect, modify or waive the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel representations and warranties of the CompanyCompany or Parent, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters respectively, set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightAgreement.
Appears in 2 contracts
Sources: Merger Agreement (EchoStar CORP), Merger Agreement (DISH Network CORP)
Access. At all times during During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX ARTICLE VIII and the ClosingEffective Time, each of the Company will (and will cause its Subsidiaries to) Parent shall afford Parent the other and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices hours and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially disrupt or interfere with business operations, upon reasonable notice, to its properties, books and records, Contracts, Permits, and personnel, as such party may reasonably request; provided, however, that the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will (as amended pursuant to Section 6.09) shall apply to any information obtained by provided to Parent or any of its Representatives in connection with any investigation conducted the Company pursuant to the access contemplated by this Section 7.46.06; and provided further, other than that neither Parent nor the Company shall be required to, or be required to cause its Subsidiaries to, afford access or disclose any information that has been madewould, is or becomes available to in the reasonable judgment of Parent or the Company, as the case may be, (a) violate any Applicable Law or Order (including Antitrust Laws and COVID-19 Measures), (b) result in a violation of its Representatives by a confidentiality agreement with a third party entered into prior to the date of this Agreement or from entered into after the date of this Agreement in the Ordinary Course or (c) jeopardize the attorney-client, attorney work product or other legal privilege of Parent or the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Companyrespective Subsidiaries. In the event that the Company objects or Parent does not provide access to any request submitted pursuant or disclose information to this Section 7.4 Parent or the Company in reliance on the basis of one or more final proviso of the matters set forth in clauses (a) to (e) of this Section 7.4preceding sentence, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company party shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of communicate such information and documents to the other party in a manner that does not result in the violation of any such obligation, Applicable Law or Order or the jeopardy of such protections. Notwithstanding the foregoing, neither Parent nor the Company shall be permitted to remove the basis for the objection, perform any on-site procedures (including by arrangement of appropriate “counselan on-to-counsel” disclosure, clean room procedures, redaction and site environmental or other customary procedures, entry into a customary joint defense agreement and, study) with respect to any property of the contractual termination other party or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightthe other party’s Subsidiaries without the other party’s prior written consent.
Appears in 2 contracts
Sources: Merger Agreement (Bioceres Crop Solutions Corp.), Merger Agreement (Marrone Bio Innovations Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingParent will, the Company will (and will cause its Subsidiaries Affiliates to) afford Parent , permit Purchaser and its Representatives to have reasonable access access, prior to the Closing Date, to the personnel, properties, books and records, Contracts and Permits to the extent relating to the Business during normal business hours, working hours and upon reasonable advance notice; provided, to however, that Purchaser will not disrupt the properties, offices and other facilities, Contracts, books and records and personnel normal operations of the Company GroupBusiness or other operations or activities of the Sellers or their Affiliates; provided, except further, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) nothing herein will require any applicable Law employee of a Seller or regulation requires any of its Affiliates to provide any information regarding the Company Group to restrict Business in any other format or otherwise prohibit access to such documents manipulate or informationreconfigure any data regarding the Business; (b) nothing herein will require the Sellers or their Affiliates to provide Purchaser with access to such documents or copies of (i) any information would give rise to that must be maintained as confidential by applicable Law or in accordance with the terms of a material risk of waiving any attorney-client privilegewritten agreement with a third party or (ii) sensitive customer or employee information, work product doctrine manufacturing processes, pricing lists or other privilege applicable information that relates to such documents or information; (c) access the Business and the provision of which, in Parent’s reasonable business judgment, could reasonably be expected to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (eprovided, in each case of clauses (i) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates(ii), on the one hand, and that Parent and its Affiliates, on the other hand. Subject Affiliates will use commercially reasonable efforts to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted provide such information in a manner that does not unreasonably and materially interfere violate such Law or is in accordance with the conduct such agreement); (c) nothing herein will require any of the business Sellers or their Affiliates to provide Purchaser with access to or copies of any information that relates to any businesses or operations of the Company Group Sellers or create a material risk of damage their Affiliates other than the Business; and (d) nothing contained herein will permit Purchaser to conduct any soil, sediment, groundwater or destruction other intrusive sampling. Parent will, and will cause its Affiliates to, permit Purchaser and its Representatives to any property or assets of have reasonable access, after the Company Group. Any access Closing Date, to all books and records to the properties of the Company Group will be subject extent relating to the Company’s Business, but not included in the Acquired Assets as described in Section 1.2(h), during normal working hours and upon reasonable security measures advance notice, excluding Tax Returns and insurance requirements related notes, worksheets, files and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations documents related thereto (except as otherwise set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions in Section 10.6); provided, that (x) nothing herein will require any employee of the Confidentiality Agreement will apply to any information obtained by a Parent or any of its Affiliates to provide any information in any other format or otherwise to manipulate or reconfigure any data; (y) nothing herein will require Parent or its Affiliates to provide Purchaser or its Representatives in connection with any investigation conducted pursuant access to the access contemplated by this Section 7.4, other than or copies of (1) any information that has been mademust be maintained as confidential by applicable Law or in accordance with the terms of a written agreement with a third party or (2) sensitive customer or employee information, manufacturing processes, pricing lists or other information the provision of which, in Parent’s reasonable business judgment, could reasonably be expected to violate applicable Law (provided, in each case of clauses (1) and (2), that Parent and its Affiliates will use commercially reasonable efforts to provide such information in a manner that does not violate such Law or is or becomes available to in accordance with such agreement); and (z) nothing herein will require Parent or any of its Representatives by Affiliates to provide Purchaser with access to or from the Company copies of any information that relates to any businesses or any operations of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements Parent or its public reporting obligationsAffiliates other than the Business. All requests for access pursuant will be made to this Section 7.4 must such Representatives of Parent as Parent will designate, who will be directed solely responsible for coordinating all such requests and access thereunder. Notwithstanding the foregoing, prior to the General Counsel Closing, Purchaser and Purchaser’s Representatives shall not contact or in any other manner communicate with the customers and suppliers of the CompanyBusiness in connection with the transactions contemplated hereby, except following prior consultation with and written approval from Parent or another person designated by its Representatives. Notwithstanding the Company. In the event that the Company objects foregoing or any other provision in this Agreement (including Section 10.6), none of Purchaser, any Affiliate of Purchaser or any Representative of Purchaser will be entitled to review or have access to any request submitted pursuant to this Section 7.4 on the basis Tax Return of one a Seller or more any Affiliate of a Seller (including Tax Returns of the matters set forth in clauses Purchased Companies with regard to Pre-Closing Tax Periods) or any work papers related thereto, other than those portions or excerpts thereof (aor a pro forma Tax Return) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect relating solely to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightPurchased Companies.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (Stanley Black & Decker, Inc.), Stock and Asset Purchase Agreement (Newell Brands Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall, solely for purposes of furthering the Merger or integration planning related thereto subject to the restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilitiesbooks, Contractsrecords, books and records Contracts and personnel of the Company Groupand its Subsidiaries and instruct its and their Representatives and personnel to reasonably cooperate with Parent, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or informationinformation or providing access to such documents or information would violate or cause a default pursuant to, or give a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (bii) access to such documents or information would give rise to a material risk the waiver of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (diii) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries or any third Persons; or (eiv) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other handhand (provided, that the foregoing clause shall not restrict any Person’s rights to seek discovery pursuant to Law, and nothing herein shall restrict any Person’s rights to oppose any discovery request pursuant to Law); provided, that the Company shall give written notice to Parent of the fact that it is withholding such information or documents pursuant to clauses (i) through (iv) and thereafter the Company shall use its reasonable best efforts to allow the disclosure of such information (or as much of it as possible) in a manner that would not violate any of clauses (i) through (iv). Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.7 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.7 shall be conducted in a manner that does not (i) unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to operate any equipment or perform invasive testingor subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary in this Agreementcontrary, the Company may satisfy its obligations set forth above by electronic means if physical access is Parent and Merger Sub shall not, and shall cause their respective Representatives not permitted under applicable Law. The terms and conditions to, contact any employee or other service provider of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives Subsidiaries not involved in the ordinary course negotiation or consummation of their ongoing business arrangements consistent with past practicethe Transactions or any customer, including technology or other partner, vendor or supplier of the Company in connection with Parentthe Merger or any of the other Transactions, in each case, without the Company’s preparation prior written consent, and Parent and Merger Sub acknowledge and agree that any such contact shall be arranged and supervised by Representatives of its consolidated financial statements or its public reporting obligationsthe Company. All requests for access pursuant to this Section 7.4 6.7 must be directed to the General Counsel Chief Legal Officer of the Company, Company or another person other Person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Sources: Merger Agreement (CVS HEALTH Corp), Merger Agreement (Oak Street Health, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the (a) The Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, hours upon reasonable advance noticenotice to the Company, throughout the period from the date hereof until the earlier of the termination of this Agreement and the Teton Merger Effective Time, to the its and its Subsidiaries’ personnel, properties, offices and other facilitiesassets, Contracts, commitments, books and records and such other information concerning its business, properties, finances, operations, assets, litigation matters, environmental compliance matters, cash-flow reports and personnel of the as Parent may reasonably request. The Company Group, except that the Company may restrict or otherwise prohibit access shall use its commercially reasonable efforts to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the reasonably cooperate with Parent and Parent’s Representatives in connection with such access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingexamination. Notwithstanding anything to the contrary contained in this AgreementSection 6.2(a), any document, correspondence or information or other access provided pursuant to this Section 6.2(a) may be redacted or otherwise limited to prevent disclosure of information concerning the valuation of the Company may satisfy its obligations set forth above by electronic means if physical and the Teton Merger or other similarly confidential or competitively sensitive information. All access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available 6.2(a) shall be (i) conducted in such a manner as not to Parent or any interfere unreasonably with the normal operations of its Representatives by or from the Company or any of its Representatives Subsidiaries and (ii) coordinated through the Chief Legal Officer of the Company or a designee thereof.
(b) Notwithstanding anything to the contrary contained in this Section 6.2, neither the Company nor any of its Subsidiaries shall be required to provide any access, or make available any document, correspondence or information, if doing so would, in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel reasonable judgment of the Company’s legal counsel, (i) jeopardize or cause a risk of loss or waiver of the attorney-client, attorney work product or other similar privilege of the Company or any of its Subsidiaries or (ii) violate any (A) Law applicable to the Company or any of its Subsidiaries or the assets, or another person designated by operation of the Company. In the event that business, of the Company objects or any of its Subsidiaries or (B) Contract to which the Company or any request submitted pursuant to this Section 7.4 on the basis of one its Subsidiaries is a party or more by which any of the matters set forth their assets or properties are bound; provided, that in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, instances the Company shall inform Parent of the general nature of the information being withheld and, on Parent’s request, reasonably cooperate with Parent the other party to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take provide such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents information, in whole or in part, in a manner to remove that would not result in any of the basis for outcomes described in the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction foregoing clauses (i) and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (ii).
(c) The parties hereto hereby agree that all information provided to them or their respective Representatives in connection with this Agreement and the consummation of this Section 7.4the transactions contemplated hereby shall be governed in accordance with the Confidentiality Agreement and the Clean Team Agreement, obtaining a waiver each of which shall continue in full force and effect in accordance with respect to or consent under such contractual termination or acceleration righttheir terms.
Appears in 2 contracts
Sources: Merger Agreement (Tegna Inc), Merger Agreement (Nexstar Media Group, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records records, facilities and personnel and Representatives of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or informationinformation so long as the Company has taken all reasonable steps to permit inspection of or to disclose such information and to respond in a timely manner to all subsequent queries by Parent and its Representatives based on such information on a basis that does not compromise the Company’s attorney-client or other privilege with respect thereto; or (c) access to a Contract in effect as of the date of this Agreement to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19applicable Law, nothing in this Section 7.4 will be construed to require the Company Group or any will provide Parent with reports of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationthe Company reasonably requested by Parent. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.6 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.6. All requests for access pursuant to this Section 7.4 6.6 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 2 contracts
Access. At all times during the period commencing (a) Subject to compliance with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingapplicable Laws, the Company will (and will cause its Subsidiaries to) shall afford to Parent and to its Representatives officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (collectively, “Representatives”) reasonable access access, solely for reasonable business purposes or purposes reasonably related to consummating the Offer and/or the Merger and carrying out post-Merger integration or post-Merger planning, during normal business hours, upon reasonable advance notice, throughout the period prior to the earlier of the Effective Time and the Termination Date, to the Company’s and its Subsidiaries’ properties, offices and other facilitiescontracts, Contractscommitments, Tax returns, personnel, work papers, books and records records, other than any such matters that relate to the negotiation and personnel execution of this Agreement, including with respect to the consideration or valuation of the Company GroupOffer or the Merger or any financial or strategic alternatives thereto, except or that relate to any Alternative Proposal or Superior Proposal. The foregoing notwithstanding, the Company may restrict or otherwise prohibit shall not be required to afford such access to any documents or information to (i) if such access would, in the extent thatCompany’s good-faith discretion, (ax) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving jeopardize any attorney-client privilege, work product doctrine or other legal privilege or trade secret protection or (y) contravene any applicable to such documents Law, fiduciary duty or information; binding agreement (c) access to a Contract including any confidentiality agreement to which the Company Group or any of its Affiliates is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosureparty); or (eii) to such documents information that relates to the minutes of the meetings of the Company Board or its committees where the Company Board or any applicable committee discussed the transactions contemplated by this Agreement or any financial or strategic alternatives thereto (including any presentations or other materials prepared by or for the Company Board or committees thereof, whether in connection with a specific meeting, or otherwise relating to such subject matter); provided that, in the case of clause (i), the Company shall use commercially reasonable efforts to make appropriate substitute arrangements (including by way of example by entering into a joint defense or other similar agreement) to permit disclosure to the maximum extent legally permissible that would not violate such attorney-client or other legal privilege or trade secret protection or contravene any applicable Law, fiduciary duty or binding agreement. Notwithstanding anything contained in this Agreement to the contrary, the Company shall not be required to provide any access or make any disclosure pursuant to this Section 5.3 to the extent such access or information are is reasonably pertinent to any adverse Legal Proceeding between a litigation where the Company and or any of its Affiliates, on the one hand, and Parent and its Parent, Merger Sub or any of their respective Affiliates, on the other hand. Subject , are adverse parties or reasonably likely to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingbecome adverse parties. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above to provide access to properties, contracts, commitments, Tax returns, personnel, work papers, books and records and any other documents and information by electronic means if physical access is not reasonably feasible or would not be permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply .
(b) Parent agrees that all information provided to any information obtained by Parent it or any of its Representatives in connection with any investigation conducted pursuant to this Agreement and the access consummation of the transactions contemplated by this Section 7.4Agreement shall be deemed to be “Information”, other than any information that has been madeas such term is used in, is or becomes available to Parent or any and shall be treated in accordance with, the confidentiality agreement, dated as of its Representatives by or from December 2, 2024, between the Company or any and Parent (the “Confidentiality Agreement”) and the Clean Team Agreement, dated as of its Representatives in December 19, 2024, between the ordinary course Company and Parent (the “Clean Team Agreement”), both of their ongoing business arrangements consistent with past practicewhich, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed notwithstanding anything to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters contrary set forth therein, shall continue in clauses (a) full force and effect until the Closing Date. If for any reason this Agreement is terminated prior to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detailthe Closing Date, the nature of what is being prevented and/or withheld Confidentiality Agreement and the reasons therefor, Clean Team Agreement shall nonetheless continue in full force and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate effect in accordance with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration righttheir respective terms.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
Access. At all times during (a) From the period commencing with the execution and delivery of this Agreement and continuing until date hereof through the earlier to occur of the Closing or the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical shall provide to the Purchaser and such Purchaser’s authorized agents, Affiliates, officers and representatives (including financing sources and their respective representatives) (a) reasonable access is not permitted under applicable Law. The terms to the books and conditions records, customers, properties, directors, managers and officers of the Confidentiality Agreement will apply Company, including copies of minutes of all meetings of directors and shareholders (and all actions by written consent) from September 22, 2014 through the Closing; provided, however, that such examinations and investigations shall be conducted during the Company’s normal business hours and in the presence of a designated representative of the Company and shall not unreasonably interfere with the operations and activities of the Company; (b) copies of all Contracts, books and records, documents relating to the terms of employment or any other matter relating to any information obtained by Parent officer, director, manager or employee of any of its Representatives in connection with any investigation conducted pursuant the Company and other existing documents and data as such Purchaser may reasonably request; and (c) such additional financial, operating and other data and information as such Purchaser may reasonably request.
(b) Without limiting the foregoing, but subject to the access contemplated by other terms of this Section 7.46.3, other than the Company shall consult with the Purchaser, and allow the Purchaser the opportunity to reasonably participate in, at the Purchaser’s cost, and keep the Purchaser reasonably informed with respect to, any information that has been made, is or becomes available to Parent or Legal Action brought by any shareholder of its Representatives by or from the Company against the Company or any of its Representatives in directors or officers. The Company shall also provide the ordinary course officers of the Purchaser with access to the personnel of the Company relating to responsibilities and/or potential contractual arrangements of the Company to be effective on or after the Closing. Neither the Company, the Purchaser, nor any of their ongoing business arrangements consistent with past practicerespective subsidiaries, including in connection with Parent’s preparation shall be required to provide access to or to disclose information (i) where such access or disclosure would jeopardize the attorney-client privilege of its consolidated financial statements such party or its public reporting obligationssubsidiaries or contravene any Law, Order, fiduciary duty or binding agreement entered into prior to the date of this Agreement or (ii) relating to its board’s officers’, employees’, agents’, or financial advisers’ consideration or deliberation of the transactions contemplated hereby. The parties hereto shall make appropriate substitute disclosure arrangements under circumstances in which the restrictions of part (i) of the preceding sentence apply.
(c) A designee of the Purchaser shall be invited and entitled to attend all meetings of the Board of Directors; provided, however, such individuals (i) will attend such meetings in an observational capacity only and shall not participate in any deliberations or decisions of such boards or committees, (ii) shall be excluded from any portions of such meetings involving (A) discussion relating to the transactions contemplated by this Agreement, (B) matters for which the inclusion of such individuals would or could reasonably be expected to violate applicable Law or Orders of a Governmental Entity, or (C) discussions relating to matters which are otherwise reasonably deemed by the Board of Directors to be confidential (together, “Board Confidential Matters”). Board packages and notices shall be submitted by the Company to the Purchaser for distribution to the Purchaser’s designated attendee simultaneously with their submission to board members; provided that information relating to Board Confidential Matters may be excluded therefrom. All requests for access information and materials provided pursuant to this Section 7.4 must Agreement shall be directed subject to the General Counsel provisions of the CompanyAmended Mutual Non-Disclosure Agreement entered into between Avenue Investments, L.P. and the Company as of January 9, 2014.
(d) This Section 6.3 shall not affect or otherwise diminish or obviate in any respect, or another person designated by affect the Company. In the event that the Company objects Purchaser’s right to rely upon, any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth representations, warranties or covenants contained in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightAgreement.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Acre Realty Investors Inc), Stock Purchase Agreement (Roberts Realty Investors Inc)
Access. (a) At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingAppointment Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives accountants, legal counsel and other representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupto enable Parent to obtain all information concerning the business, except including the status of product development efforts, properties, results of operations and personnel of the Company, as Parent may reasonably request; provided, however, that notwithstanding the foregoing, neither the Company may restrict or otherwise prohibit nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would contravene any documents Legal Requirement or information Order or that would reasonably be expected to the extent that, (a) any applicable Law violate or regulation requires the Company Group to restrict result in a loss or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk impairment of waiving any attorney-client privilege, or work product doctrine privilege. In furtherance of the foregoing, no information identifying individual employees or other privilege applicable to such documents or information; (c) access to a Contract to which the consultants of Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives Subsidiaries or protected personal information regarding such employees or consultants will be disclosed under this Agreement (including in the Company Disclosure Schedule) in respect of employees or consultants that are employed (or were employed and remain domiciled) in any country that has enacted legislation implementing the EU Personal Data Privacy Directive or similar legislation, except to prepare the extent permitted by a contractual undertaking entered into by the Company and Parent regarding maintenance of privacy of such data in a form reasonably necessary to effect compliance with such legislation.
(b) In particular, but without limitation, from and after the date of this Agreement, Parent and its agents, contractors and representatives shall have the right and privilege of entering upon all properties leased or occupied by the Company or any reportsof its Subsidiaries and of reviewing the Company’s books and records regarding such properties from time to time as needed to make any inspections, analysesevaluations, appraisals, opinions surveys or other information. Any tests which Parent may deem necessary or appropriate.
(c) No information or knowledge obtained by Parent in any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.6: (i) shall affect or be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business deemed to modify any representation or warranty of the Company Group set forth herein or create a material risk of damage or destruction to any property or assets of the Company Group. Any access conditions to the properties obligations of Parent and Merger Sub to consummate the Company Group will be subject transactions contemplated hereby, including the Offer and the Merger, (ii) shall limit or otherwise affect Parent’s right to rely on the Company’s reasonable security measures representations and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary warranties in this Agreement, (iii) shall be interpreted as a waiver of Parent’s rights or remedies under this Agreement and applicable Legal Requirements or (iv) shall otherwise limit, impair or affect the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted remedies available to Parent and Merger Sub under this Agreement and applicable LawLegal Requirements. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available provided to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right6.6.
Appears in 2 contracts
Sources: Merger Agreement (Autodesk Inc), Merger Agreement (Moldflow Corp)
Access. At all times during the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VII and the ClosingEffective Time (the “Interim Period”), the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries; provided, except however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group or its Subsidiaries to restrict or otherwise prohibit access to such documents or information; information only to the extent of such restriction or prohibition, (b) granting such access would violate any obligations of the Company or any of its Subsidiaries with respect to confidentiality to any third party or otherwise breach, contravene or violate, constitute a material default under, or give a third party the right terminate or accelerate any obligations under, any then effective Contract to which the Company or any of its Subsidiaries is a party, or (c) access to such documents or information would give rise reasonably be expected to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which , provided, that the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person shall use its reasonable best efforts to communicate the right applicable information to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons Parent in a manner way that would result in any not violate the applicable Law, Contract or obligation or waive such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 4.1 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties or any of the Company Group will its Subsidiaries, shall be subject to the Company’s reasonable security measures and insurance requirements requirements, and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary Company’s prior written consent, in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawsole discretion. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.44.1. Nothing in this Section 4.1 shall be construed to require the Company, any of its Subsidiaries or any Representatives of any of the foregoing to prepare any reports, analyses, appraisals, opinions or other than any information that has been madeinformation. No investigation shall affect the Company’s representations and warranties contained herein, is or becomes limit or otherwise affect the remedies available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access Merger Sub pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightAgreement.
Appears in 1 contract
Access. At all times during From the period commencing with the execution and delivery of this Agreement and continuing date hereof until the earlier to occur of the Closing or termination of this Agreement pursuant to in accordance with Article IX and the ClosingXII, the Company will shall (and will shall cause its Subsidiaries to): (a) afford Parent the Buyer and its Representatives reasonable access to and the right to inspect all of the properties, assets, premises, records and other documents and data related to it; (b) furnish the Buyer and its Representatives with such financial, operating and other data and information related to it as the Buyer and its Representatives may reasonably request or require in order to complete its due diligence investigation; and (c) instruct its Representatives to cooperate with the Buyer and its Representatives in their investigation of the Company and its Subsidiaries; provided, however, that any such access, inspection and investigation shall be conducted during normal business hours, upon preceded by reasonable advance notice, notice to the propertiesCompany, offices and other facilities, Contracts, books and records and personnel under the supervision of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to Company’s personnel and in such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent not to any adverse Legal Proceeding between interfere with the normal operations of the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingSubsidiaries. Notwithstanding anything to the contrary in this Agreement, neither the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or nor any of its Representatives in connection with Subsidiaries shall be required to disclose any investigation conducted pursuant information to the access contemplated by this Section 7.4, other than any information that has been made, is Buyer or becomes available to Parent or any of its Representatives if such disclosure would, as determined by or from the Company in good faith in its sole discretion: (x) cause significant competitive harm to the Company or any of its Subsidiaries, or their respective businesses, 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. Prior to the Closing, without the prior written consent of the Company, which shall not be unreasonably withheld, conditioned or delayed, neither the Buyer nor its Representatives in shall contact any suppliers to or customers of the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation Company or any of its consolidated financial statements Subsidiaries and neither the Buyer or any of its public reporting obligationsRepresentatives shall have any right to perform invasive or subsurface investigations of the Real Property. All requests for The Buyer shall, and shall cause its Representatives to, abide by the terms of Section 8.02(c) hereto with respect to any access or information provided pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right8.01(c).
Appears in 1 contract
Sources: Stock Purchase Agreement (Evoqua Water Technologies Corp.)
Access. At all times during (a) From and after the period commencing with the execution Execution Date and delivery of this Agreement and continuing until the Closing Date (or earlier to occur of the termination of this Agreement pursuant Agreement), subject to Article IX obtaining any required Third Party consents that are expressly required under applicable Contracts prior to KLRE or its Representatives access to the Contributed Assets, including any such required consents of Third Party operators of any portion of the Contributed Assets, Tema shall (i) afford to KLRE and its lenders and underwriters, and each of the Closingforegoing Person’s respective officers, directors, employees, accountants, consultants, agents, legal counsel, and other representatives (collectively, the Company will (and will cause its Subsidiaries to“Representatives”) afford Parent and its Representatives reasonable access access, during normal business hours, hours and upon reasonable advance prior notice, to the propertiesContributed Assets, offices Records, and other facilitiesdocuments in Tema’s or the Company’s possession or control, Contracts, books (ii) make available to KLRE the Key Employees and records the officers of Tema and personnel of the Company Group, except that are knowledgeable with respect to the Contributed Assets and (iii) furnish reasonably promptly to KLRE and its Representatives such information concerning the Contributed Assets and the Company as may restrict be reasonably requested, from time to time, by or otherwise prohibit access to any documents or information to on behalf of KLRE. Notwithstanding the extent thatforegoing provisions of this Section 5.2(a), (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant Tema shall not be required to, or give to cause any Person the right to terminate or accelerate the rights pursuant of its Subsidiaries to, such Contract; (d) grant access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or furnish information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group KLRE or any of its Representatives to prepare the extent that such information is subject to an attorney/client or attorney work product privilege or that such access or the furnishing of such information is prohibited by Law or would be reasonably likely to violate the express terms of any reportsContract. Notwithstanding the foregoing, analysesKLRE shall not have access to personnel records of the Company relating to individual performance or evaluation records, appraisals, opinions medical histories or other informationinformation in each case to the extent the disclosure of such information would result in a violation of applicable Law. Any investigation conducted Each of Tema and KLRE agrees that prior to Closing it will not, and prior to Closing will cause its Representatives not to, use any information obtained pursuant to the access contemplated by this Section 7.4 will 5.2 for any purpose unrelated to the consummation of the Transactions and reasonably related matters.
(b) All investigations and due diligence conducted by KLRE or any of KLRE’s Representatives shall be conducted at KLRE’s sole cost, risk and expense and any conclusions made from any examination done by KLRE or any of KLRE’s Representatives shall result from KLRE’s own independent review and judgment. Tema or its designee shall have the right to accompany KLRE and KLRE’s Representatives whenever they are on site on the Contributed Assets. KLRE’s investigation and review shall be conducted in a manner that does not unreasonably and materially interfere minimizes interference with the conduct ownership or operation of the Contributed Assets or the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company GroupCompany. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include KLRE shall have the right to perform invasive testing. Notwithstanding anything to visual site inspections and environmental compliance evaluations (including the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions use of infrared cameras) (“Phase I”) of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the CompanyContributed Assets. In the event that the Company objects findings of the Phase I’s suggest the presence of Environmental Defects, KLRE shall be entitled to perform any testing of any Equipment (including integrity testing and the use of infrared cameras) or sampling of the ambient air, soil, surface water, groundwater, or other media on or relating to the Contributed Assets necessary to confirm the presence of such Environmental Defects. KLRE shall furnish to Tema, free of costs, a copy of any written final reports and test results prepared by or for KLRE related to any request submitted such Phase I or further environmental assessment, intrusive testing or sampling on or relating to the Company or any of the Contributed Assets as soon as reasonably possible after such report is prepared. KLRE shall obtain all permits necessary to conduct any approved invasive activities from any applicable Governmental Entities; provided that, upon request, Tema and the Company shall provide KLRE with assistance (at no cost or liability to KLRE or the Company) as reasonably requested by KLRE that may be necessary to secure such permits. The Company shall have the right, at its option, to split with KLRE any samples collected pursuant to approved invasive activities. KLRE shall furnish to Tema, free of costs, a copy of any written drafts and final reports prepared prior to the Defect Deadline by or for KLRE related to any such Phase I, or relating to the Company or any of the Contributed Assets as soon as reasonably possible after such report is prepared prior to the Defect Deadline. If the Closing does not occur, (i) KLRE shall promptly return to the Company or, at the Company’s request, destroy all copies of any records, reports, summaries, evaluations, opinions, due diligence memos and derivative materials related thereto in the possession or control of KLRE or any of KLRE’s Representatives, (ii) KLRE shall keep and shall cause each KLRE Representative to keep, any and all information obtained by or on behalf of KLRE confidential in accordance with the Confidentiality Agreement and (iii) an officer of KLRE shall promptly confirm to the Company and Tema that KLRE has fully complied with the terms of this sentence. Notwithstanding the foregoing, subject to the obligations set forth in the Confidentiality Agreement, KLRE and its Representatives may retain (A) one physical copy solely for legal, regulatory and compliance purposes and (B) electronic copies with its or their customary electronic record retention and retrieval practices.
(c) KLRE shall abide by Tema’s, the Company’s and any Third Party operator’s written safety rules, regulations and operating policies provided to KLRE (including the execution and delivery of any documentation or paperwork, such as confidentiality agreements or liability releases, required by Third Party operators with respect to KLRE’s access to any of the Contributed Assets) while conducting its due diligence evaluation of the Contributed Assets. KLRE shall provide Tema with at least two Business Days’ written notice before the Contributed Assets are proposed to be accessed pursuant to this Section 7.4 on the basis of one or more 5.2, which notice will include a description of the matters set forth in clauses activities KLRE intends to undertake.
(ad) In connection with the rights of access, examination and inspection granted to (e) of KLRE under this Section 7.45.2, it must do so by providing Parent(i) KLRE WAIVES AND RELEASES ALL CLAIMS AGAINST EACH TEMA INDEMNIFIED PARTY, in reasonable detailTHE COMPANY AND EACH THIRD PARTY OPERATOR ARISING IN ANY WAY THEREFROM OR IN ANY WAY CONNECTED THEREWITH AND (ii) KLRE HEREBY AGREES TO INDEMNIFY, the nature of what is being prevented and/or withheld and the reasons thereforDEFEND AND HOLD HARMLESS EACH TEMA INDEMNIFIED PARTY, and prior to preventing such access or withholding such information or documents from Parent and its RepresentativesTHE COMPANY AND EACH THIRD PARTY OPERATOR FROM AND AGAINST ANY AND ALL DAMAGES ATTRIBUTABLE TO PERSONAL INJURY, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosureDEATH OR PHYSICAL PROPERTY DAMAGE, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objectionOR VIOLATION OF THE TEMA INDEMNIFIED PARTIES’, including by arrangement of appropriate “counsel-to-counsel” disclosureTHE COMPANY’S OR ANY THIRD PARTY OPERATOR’S WRITTEN RULES, clean room proceduresREGULATIONS, redaction and other customary proceduresOR OPERATING POLICIES, entry into a customary joint defense agreement andARISING OUT OF, with respect to the contractual termination or acceleration right contemplated by clause RESULTING FROM OR RELATING TO ANY FIELD VISIT OR OTHER DUE DILIGENCE ACTIVITY CONDUCTED BY KLRE WITH RESPECT TO THE COMPANY OR THE CONTRIBUTED ASSETS, EVEN IF SUCH LIABILITIES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE SOLE, ACTIVE, PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OR VIOLATION OF LAW BY ANY TEMA INDEMNIFIED PARTY, THE COMPANY OR ANY THIRD PARTY OPERATOR; BUT EXCLUDING ANY DAMAGES OR LIABILITIES ATTRIBUTABLE TO THE (cI) of this Section 7.4GROSS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF ANY TEMA INDEMNIFIED PARTY, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightTHE COMPANY OR ANY THIRD PARTY OPERATOR OR (II) ANY PREVIOUSLY EXISTING CONDITION OF THE CONTRIBUTED ASSETS NOT CAUSED BY KLRE OR ITS REPRESENTATIVES, INCLUDING THOSE UNCOVERED OR DISCOVERED BY KLRE OR ANY OF KLRE’S REPRESENTATIVES DURING THE COURSE OF ANY SUCH ACCESS TO OR INSPECTION OF THE CONTRIBUTED ASSETS.
Appears in 1 contract
Sources: Business Combination Agreement (KLR Energy Acquisition Corp.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records records, facilities and personnel and Representatives of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information, provided that the Company shall take all reasonable steps to permit inspection of or to disclose such information and to respond in a timely manner to all subsequent queries by Parent and its Representatives based on such information on a basis that does not compromise the Company’s attorney-client or other privilege with respect thereto; or (c) access to a Contract in effect as of the date of this Agreement to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19applicable Law and the immediately preceding sentence, nothing in this Section 7.4 will be construed to require the Company Group or any will provide Parent with reports of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationthe Company reasonably requested by Parent. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.6 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties or systems of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementherein, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.may
Appears in 1 contract
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingThe Company will, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel each of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent thatother Hasbro Companies to, (a) permit the Agent, by its representatives and agents, to inspect any applicable Law or regulation requires of the Company Group properties, including, without limitation, corporate books, computer files and tapes and financial records of each of the Hasbro Companies, to restrict or otherwise prohibit access to examine and make copies of the books of accounts and other financial records of each of the Hasbro Companies at such documents or information; reasonable times and intervals as the Agent may determine, and (b) access permit each of the Banks to discuss the affairs, finances and accounts of each of the Hasbro Companies with, and to be advised as to the same by, their respective officers at such documents or reasonable times and intervals as the Banks may designate. The Banks and the Agent agree that they will treat in confidence all financial information would give rise with respect to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one handSubsidiaries and all information obtained during such inspection or discussion or pursuant to 9.5 which has not become public without violation hereof, and Parent and its Affiliateswill not, on without the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel consent of the Company, disclose such information to any third party or another person designated by any trust or investment employee or trust or investment officer of any Bank, and, if any representative or agent of the Banks or the Agent shall not be an employee of one of the Banks or the Agent or any affiliate of the Banks or the Agent, such designee shall be reputable and of recognized standing and shall agree in writing to treat in confidence the information obtained during any such inspection and, without the prior written consent of the Company, not to disclose such information to any third party or make use of such information for personal gain. In Notwithstanding the event that foregoing, the Company objects hereby authorizes the Agent and each of the Banks to any request submitted disclose information obtained pursuant to this Section 7.4 on the basis of one Agreement to banks or more other financial institutions who are participants or potential participants in or assignees of the matters set forth in clauses Loans made or to be made hereunder (a) provided, that prior to (e) any such disclosure to any such participant, potential participant or assignee, such Person shall have agreed to be bound by the provisions of this Section 7.4, it must do so by providing Parent, 9.10 and 22 pursuant to a confidentiality agreement substantially in reasonable detail, the nature form of what is being prevented and/or withheld Exhibit H hereto and provided to the reasons thereforCompany), and prior to preventing such access where required by applicable law or withholding such information required or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access requested by governmental or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightregulatory authorities.
Appears in 1 contract
Access. At all times during (a) From and after the period commencing with the execution and delivery date of this Agreement and continuing until the earlier to occur of the Closing or the termination of this Agreement pursuant to Article IX IX, Seller shall, and the Closing, shall cause the Company will (and will cause its Subsidiaries to) afford Parent , give Purchaser and its Representatives reasonable access access, during normal business hours, upon reasonable advance noticewritten notice and solely for purposes of integration planning and in furtherance of the Transactions, to personnel, properties and Records relating to the propertiesCompany; provided, offices that Purchaser and other facilitiesits Representatives (i) are accompanied at all times by Business Employees during any access to properties of the Company, Contracts, books (ii) comply with all applicable Law and records all applicable policies and personnel requirements of the Company Group(including such policies and requirements relating to environmental, except health, safety and security matters) and (iii) shall not contact or otherwise communicate with the employees, customers or suppliers of the Company or any other Person having a business relationship with the Company, unless approved in writing in advance by Seller or as described on Section 5.01(a) of the Seller Disclosure Schedule; provided, further, that Seller or the Company may restrict or otherwise prohibit such access to the extent that, as determined in the sole discretion of Seller or the Company, such access (x) could unreasonably disrupt the normal operations of Seller or the Company, (y) could violate or result in a waiver of any documents attorney-client privilege of Seller or the Company or violate any applicable Law (including merger control and competition Laws) or (z) could breach any duty of confidentiality or other obligation owed to any person. Except as otherwise approved in advance in writing by Seller, such rights of access explicitly exclude any Phase II environmental investigations or any other intrusive or invasive testing or sampling, including testing or sampling of soil, surface water, air, groundwater or other materials. In the event that Seller makes a determination to withhold any information from Purchaser based on clause (y) or (z) above, then to the extent such withheld information relates to facts, circumstances or events that would reasonably be expected to be materially adverse to the Company, Seller will, to the extent doing so is legally permissible, reasonably practicable, consistent with avoiding liability for gun jumping or related other competition Laws and would not in and of itself violate or result in a waiver of attorney-client privilege or breach any duty of confidentiality or other obligation, reasonably inform Purchaser of the same and discuss with Purchaser the general nature of the information withheld; provided, that the foregoing shall not limit any representations or warranties of the Company and Seller hereunder.
(b) As may be reasonably necessary in connection with Purchaser’s seeking to limit or remove certain exclusions or exceptions related to Financial Statements from the R&W Insurance Policy, upon reasonable written request from Purchaser, Seller and the Company shall use commercially reasonable efforts to provide Purchaser the information described on Section 5.01(b) of the Purchaser Disclosure Schedule, to the extent such information is reasonably available to Seller or the Company; provided, that Seller or the Company may withhold information to the extent that, as determined in the sole discretion of Seller or the Company, providing such information (ai) any applicable Law could unreasonably disrupt the normal operations of Seller or regulation requires the Company Group to restrict Company, (ii) could violate or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine privilege of Seller or the Company or violate any applicable Law (including merger control and competition Laws) or (iii) could breach any duty of confidentiality or other privilege applicable obligation owed to such documents any person; provided, further, that, notwithstanding anything to the contrary herein, it is understood and agreed that no failure of Seller or information; the Company to provide information pursuant to this Section 5.01(b) shall result in the failure of the condition set forth in Section 8.01(a) to be satisfied.
(c) access to a Contract to which the Company Group is a party or otherwise bound would violate or When exercising its rights under this Section 5.01, Purchaser shall, and shall cause a default pursuant its Representatives to, or give any Person the right use commercially reasonable efforts to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent minimize disruption to any adverse Legal Proceeding between the Company and the Business. Any information provided to or obtained by Purchaser by exercising its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject rights pursuant to Section 7.19, nothing in this Section 7.4 will be construed 5.01 will, prior to require the Company Group or any of its Representatives to prepare any reportsClosing, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Confidentiality Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Covia Holdings Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to in accordance with Article IX VII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries, except and shall furnish Parent with such financial, operating and other data and information relating to the Company and its Subsidiaries as Parent may reasonably request; provided, however, that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that the Company or its outside legal counsel reasonably determines that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; , or (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) and provided further, however, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access contemplated by this Section 6.6 shall affect or be deemed to a Contract to which modify any representation or warranty of the Company Group is a party set forth in this Agreement or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate impair the rights pursuant toand remedies available to Parent and Acquisition Sub hereunder. In the event that the Company does not provide access or information in reliance on the preceding sentence, such Contract; (d) access would result in it shall use its reasonable best efforts to communicate the disclosure of any material trade secrets of Persons applicable information to Parent in a manner way that would result in any such trade secrets no longer being protected as such under not violate the applicable Law following or waive such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationa privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.6 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor any of its Subsidiaries. Any access to the properties of the Company Group will or any of its Subsidiaries shall be subject to the terms and conditions of any applicable Lease and the Company’s reasonable security measures and insurance requirements and will shall not include the right to perform Phase 1 or Phase 2 environmental assessments or other invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.46.6. Nothing in this Section 6.6 or elsewhere in this Agreement shall be construed to require the Company, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company Subsidiaries or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 1 contract
Access. At all times during the period commencing with the execution (a) The Company shall, and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will shall cause its Subsidiaries Subsidiaries, and shall direct its and their Representatives to) , upon reasonable advance notice, afford Parent and its Representatives (at Parent’s and its Representatives’ sole cost and expense) reasonable access during normal business hours, upon reasonable advance notice, throughout the period prior to the propertiesEffective Time, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct business or create unreasonable risk of damage to the business assets or property, of the Company Group or create a material risk any of damage or destruction its Subsidiaries, to personnel, properties, Contracts, books and records (other than any property or assets of the Company Group. Any access foregoing that relate to the properties negotiation and execution of this Agreement, the Company Group will be process that led to the negotiation and execution of this Agreement or, subject to the disclosure requirements of Section 5.6, any Company Takeover Proposal), and, during such period, the Company shall, and shall cause its Subsidiaries, and shall direct its and their Representatives to, without limitation to the preceding obligations, make available to Parent subject to the same terms and conditions all other information concerning its business, properties and personnel as Parent may reasonably request; provided, however, that the Company will be permitted to redact any information or documentation provided to the extent that such information or documentation includes competitively or commercially sensitive information in the reasonable and good faith judgment of the Company’s ; and, provided, further, that the Company may implement clean team procedures or otherwise restrict the foregoing access to those Persons who have entered into or are bound by a confidentiality agreement with it. Notwithstanding the foregoing, the Company shall not be required to provide access to or make available to any Person any document or information that, in the reasonable security and good faith judgment of the Company, (i) would violate, in any material respect, any of its obligations with respect to any applicable Law or Order, (ii) would violate any of its material obligations with respect to confidentiality or the terms of any Contract or (iii) would jeopardize any attorney-client or work-product privilege; provided, that with respect to the foregoing clauses (i) through (iii) of this Section 5.2(a), the Company shall use its reasonable best efforts to (A) obtain the required consent of any such third party to provide such disclosure, (B) develop an alternative to providing such information so as to address such matters that is reasonably acceptable to the Company and (C) in the cases of clauses (i) and (iii), implement appropriate and mutually agreeable measures and insurance requirements and will not include to permit the right disclosure of such information in a manner to perform invasive testingremove the basis for the objection, including by arrangement of appropriate clean team procedures, redaction (solely to the extent necessary) or entry into a customary joint defense agreement with respect to any information to be so provided, if the parties determine that doing so would reasonably permit the disclosure of such information without violating any applicable Law or Order or jeopardizing such privilege. All requests for access or information made pursuant to this Section 5.2(a) shall be directed to an executive officer or other Person designated by the Company. Notwithstanding anything to the contrary in this Agreementherein, the Company may satisfy its obligations set forth above by electronic means if physical access is not reasonably feasible or would not be permitted under the applicable Law. The terms and conditions .
(b) In conducting any inspection of any properties of the Confidentiality Agreement will apply Company and its Subsidiaries, Parent and its Representatives shall not conduct any environmental testing or sampling at any of the facilities or properties of the Company or any of its Subsidiaries without the prior written consent of the Company (which shall be given or withheld in the Company’s sole discretion; provided, that, with respect to any information obtained a Phase I environmental site assessment report with respect to the Owned Real Property, such consent shall not be unreasonably withheld, conditioned or delayed).
(c) No investigation by Parent or its Representatives shall affect or be deemed to modify or waive the representations and warranties of the Company set forth in this Agreement. No rights under this Section 5.2 can be exercised by Parent or any of its Representatives to prepare for, or otherwise in connection with, any Proceeding relating to this Agreement.
(d) The Parties hereto hereby agree that all information provided to them or their respective Representatives in connection with any investigation conducted pursuant to this Agreement and the access contemplated by this Section 7.4consummation of the Transactions shall be governed in accordance with the confidentiality agreement, other than any information that has been madedated November 5, is or becomes available to Parent or any of its Representatives by or from 2023 (the “Confidentiality Agreement”), between the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with and Ultimate Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Sources: Merger Agreement (Hibbett Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall, subject to restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupsolely for the purpose of consummating the Transactions or to the extent reasonably necessary for the purpose of planning for integration and transition, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or informationinformation or providing access to such documents or information would violate or cause a default pursuant to, or give a third Person the right terminate or accelerate the rights pursuant to, such Contract; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company or any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries to any third Persons; or (ed) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided, that the Company shall inform Parent of the general nature of the information being withheld and, upon Parent’s request, use its commercially reasonable efforts to allow for any access or disclosure in a manner that does not result in the effects set out in clauses (a) through (d), including by making appropriate substitute arrangements. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.8 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.8 shall be conducted in a manner that does not (i) unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingor subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary and except in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is ordinary course of business and not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant related to the access contemplated by this Section 7.4Transaction, other than Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact any information that has been made, is or becomes available to Parent or any employee of its Representatives by or from the Company or any of its Representatives Subsidiaries not involved in the ordinary course negotiation of their ongoing business arrangements consistent with past practicethe Transactions or any customer, including technology or other partner, vendor or supplier of the Company in connection with Parentthe Merger or any of the other Transactions, in each case, without the Company’s preparation prior written consent, and Parent and ▇▇▇▇▇▇ Sub acknowledge and agree that any such contact shall be arranged and supervised by Representatives of its consolidated financial statements or its public reporting obligationsthe Company. All requests for access pursuant to this Section 7.4 6.8 must be directed to the General Counsel of the Company, Company or another person other Person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the (i) termination of this Agreement pursuant to Article IX VIII and the Closing(ii) Effective Time, the Company will (will, and will cause its the Company Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand the Company Subsidiaries, and furnish promptly such financial, operational and other data and information concerning its business, operations, personnel, assets, liabilities, results of operations and properties as Parent may reasonably request (so long as such financial data is reasonably available to the Company under, or derivable from, the Company’s current reporting system), except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving waive any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information, but that the Company shall inform Parent as to the general nature of what is being withheld as a result of the foregoing and shall use its reasonable best efforts to disclose such information in a way that would not waive such privilege (including, if practicable, by obtaining consent for the disclosure thereof from the applicable third Person); (c) access to a Contract to which the Company Group or any of the Company Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, to such Contract; , but that the Company shall inform Parent as to the general nature of what is being withheld as a result of the foregoing and shall use its reasonable best efforts to disclose such information in a way that would not waive such privilege (d) access would result in including, if practicable, by obtaining consent for the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under thereof from the applicable Law following such disclosurethird Person); or (ed) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.7 will be construed to require the Company, any of the Company Group Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.7 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and the Company Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor the Company Subsidiaries. Any access to the properties of the Company Group and the Company Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.7. All requests for access pursuant to this Section 7.4 6.7 must be directed to the Company’s General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more in advance of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightClosing.
Appears in 1 contract
Sources: Merger Agreement (Echelon Corp)
Access. At all times during (a) For purposes of furthering the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingtransactions contemplated hereby, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives employees, accountants, consultants, legal counsel, financial advisors, financing sources and agents and other representatives reasonable access during normal business hours, hours upon reasonable advance noticenotice to the Company, throughout the period prior to the Effective Time, to the its and its Subsidiaries’ personnel, properties, offices and other facilitiescontracts, Contractscommitments, books and records and personnel any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and, during such period, the Company Groupshall, except that the Company may restrict or otherwise prohibit access to any documents or information and shall cause its Subsidiaries to, without limitation to the extent thatpreceding obligations, make available to the other party (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 (other than reports or documents that such party is not permitted to disclose under applicable Law), (aii) a copy of all correspondence between such party or any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving its Subsidiaries and any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access party to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent with regard to any adverse Legal Proceeding action, consent, approval or waiver that is required to be taken or obtained with respect to such Contract in connection with the consummation of the Merger or the other transactions contemplated by this Agreement and (iii) all other information concerning its business, properties and personnel as Parent may reasonably request; provided, however, until the condition in Section 6.1(e) is satisfied, the Clean Team Confidentiality Agreement between the Company and its AffiliatesParent, on dated as of June 26, 2014 (the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any “Clean Team Confidentiality Agreement”) shall govern access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing“Highly Confidential Information” as defined therein. Notwithstanding anything to the contrary contained in this AgreementSection 5.2(a), any document, correspondence or information provided pursuant to this Section 5.2(a) may be redacted to remove references concerning the valuation of the Company may satisfy its obligations set forth above by electronic means if physical and the Merger or other similarly confidential information. All access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available 5.2(a) shall be (A) conducted in such a manner as not to Parent or any interfere unreasonably with the normal operations of its Representatives by or from the Company or any of its Representatives Subsidiaries and (B) coordinated through the General Counsel of the Company or a designee thereof.
(b) To the extent reasonably necessary for the Company to confirm the accuracy of the representations of Parent and Merger Sub set forth in Article IV and the ordinary course satisfaction of their ongoing business arrangements consistent the conditions precedent set forth in Section 6.2(a) or Section 6.2(b), each of Parent and Merger Sub shall provide the Company with past practicereasonably accessible information upon reasonable advance notice by the Company, including throughout the period prior to the Effective Time; provided, however, that until the condition in connection with Parent’s preparation Section 6.1(e) is satisfied, the Clean Team Confidentiality Agreement shall govern access to “Highly Confidential Information” as defined therein. Notwithstanding anything to the contrary contained in this Section 5.2(b), any document, correspondence or information provided pursuant to this Section 5.2(b) may be redacted to remove references concerning the valuation of its consolidated financial statements the Company and the Merger or its public reporting obligationsother similarly confidential information. All requests for access pursuant to this Section 7.4 must 5.2(b) shall be directed (A) conducted in such a manner as not to interfere unreasonably with the normal operations of Parent or any of its Subsidiaries and (B) coordinated through the General Counsel of Parent or a designee thereof.
(c) Notwithstanding anything to the Companycontrary contained in this Section 5.2, no party to this Agreement nor any of its Subsidiaries shall be required to provide any access, or another person designated make available any document, correspondence or information, if doing so would, in such party’s and its outside legal counsel reasonable judgment, (i) jeopardize the attorney-client privilege of such party or any of its Subsidiaries or (ii) conflict with any (A) Law applicable to such party or any of its Subsidiaries or the assets, or operation of the business, of such party or any of its Subsidiaries or (B) Contract to which such party or any of its Subsidiaries is party or by which any of the Companytheir assets or properties are bound; provided, however, that in such instances such party shall inform the other party of the general nature of the information being withheld and, upon the other party’s request, reasonably cooperate with the other party to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (i) and (ii). In Notwithstanding anything to the event that contrary contained in this Agreement, without the prior written consent of the other party to this Agreement (which shall not be unreasonably withheld, conditioned or delayed), no party to this Agreement shall have any right to perform invasive or subsurface investigations of the properties or facilities of the other party or any of its Subsidiaries.
(d) No investigation by Parent or its representatives shall affect or be deemed to modify or waive the representations and warranties of the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) this Agreement, and no investigation by the Company or its representatives shall affect or be deemed to modify or waive the representations and warranties of Parent or Merger Sub set forth in this Agreement.
(e) of The parties hereto hereby agree that all information provided to them or their respective officers, directors, employees or representatives in connection with this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld Agreement and the reasons thereforconsummation of the transactions contemplated hereby shall be governed in accordance with the confidentiality agreement, and prior to preventing such access or withholding such information or documents from Parent and its Representativesdated as of April 7, 2014, between the Company and Parent (the “Confidentiality Agreement”), which shall cooperate continue in full force and effect in accordance with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightits terms.
Appears in 1 contract
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall, subject to reasonable restrictions or limitations as a result of COVID-19 or any COVID-19 Measures afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries, except that this Section 6.6 shall not require the Company may restrict or otherwise prohibit to provide access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving waive any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries; or (ed) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19; provided, nothing that if access, information or documents are withheld for the reasons set forth in this Section 7.4 will be construed to require clauses (a) – (c), the Company Group shall inform Parent as to the general nature of what is being withheld and the Company shall use commercially reasonable efforts to provide such access, documents or information without causing the loss of any attorney-client privilege (including entering into a customary common interest or joint defense agreement or implement such other techniques as reasonably required to preserve any attorney-client privilege), violation of its Representatives to prepare any reports, analyses, appraisals, opinions Law or other informationContract or disclosure of trade secrets. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.6 shall be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create otherwise result in any unreasonably significant interference with the prompt and timely discharge by officers, employees or other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) cause a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable safety and security measures and insurance requirements and will not include the right to perform invasive testingor subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor or ambient air, or other environmental media. Notwithstanding anything herein to the contrary in this Agreementcontrary, the Company may satisfy its obligations set forth above by electronic means if physical access is Parent Entities shall not, and shall cause their respective representatives not permitted under applicable Law. The terms and conditions to, contact any employee of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives Subsidiaries not involved in the ordinary course negotiation of their ongoing business arrangements consistent with past practicethe transactions contemplated by this Agreement or any customer, including technology or other partner, vendor or supplier of the Company in connection with Parentthe Transactions, in each case, without the Company’s preparation prior written consent, and the Parent Entities acknowledge and agree that any such contact shall be arranged and supervised by Representatives of its consolidated financial statements or its public reporting obligationsthe Company. All requests for access pursuant to this Section 7.4 6.6 must be directed to the each Co-General Counsel of the Company, or another person Person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Sources: Merger Agreement (Atlas Technical Consultants, Inc.)
Access. At all times during During the period commencing with on the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany; provided, except however, that (a) the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (ai) any applicable Law or regulation (including any COVID-19 Measures) requires the Company Group to restrict or otherwise prohibit access to such documents or information; , (bii) granting such access would violate any obligations of the Company with respect to confidentiality to any third party or otherwise breach, contravene or violate, constitute a default under, or give a third party the right to terminate or accelerate an obligation under, any then effective Contract to which the Company is a party, (iii) access to such documents or information would give rise reasonably be expected to result in a material risk waiver of waiving any attorney-client privilege, work product doctrine or other applicable privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; information or (eiv) such documents or information are reasonably pertinent relate to any adverse Legal Proceeding between the evaluation or negotiation of this Agreement, the transactions contemplated hereby or, subject to Section 5.2, an Acquisition Proposal or Superior Proposal, and (b) in each case, such access may be limited to the extent the Company reasonably determines, in light of COVID-19 or any COVID-19 Measures, that such access would jeopardize the health and safety of any employee of the Company. In the event that the Company does not provide access or information in reliance on (x) clauses (a)(i), (a)(ii) or (a)(iii) of the preceding sentence, it shall use its Affiliatesreasonable best efforts to communicate the applicable information to Parent in a way that would not violate any applicable Law, on the one handContract or obligation or waive such a privilege, and (y) clause (b) of the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require a way that the Company Group or reasonably determines would not would jeopardize the health and safety of any employee of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationthe Company. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.6 shall be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will Company, shall be subject to the Company’s reasonable security measures and insurance requirements requirements, and will shall not include the right to perform invasive testing. Notwithstanding anything to testing without the contrary Company’s prior written consent, in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawsole discretion. The terms and conditions of the Confidentiality Agreement will shall apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is 6.6. Nothing in this Section 6.6 or becomes available elsewhere in this Agreement shall be construed to Parent or any of its Representatives by or from require the Company or any Representatives of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel any of the Companyforegoing to prepare any reports, analyses, appraisals, opinions or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightinformation.
Appears in 1 contract
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingInterim Period, the Company will (and will cause its Subsidiaries to) use commercially reasonable efforts to afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation (including COVID-19 Measures) requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the any Company Group Member is a party or otherwise bound would violate or cause a material default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons third Persons; (e) access would, in light of COVID-19 or COVID-19 Measures, jeopardize the health and safety of any officer or employee of the Company Group; or (f) relates to the activities of the Company pursuant to Section 5.3(a), except to the extent required to be provided pursuant to Section 5.3(f); provided that, other than with respect to clause (f), the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall reasonably cooperate with Parent to allow the disclosure of such information (or as much of it as possible) in a manner that would result in not violate any such trade secrets no longer being protected as such under applicable Law following such disclosure; or of clauses (a) through (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand). Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisalsappraisals or opinions that places an undue burden on the personnel of the Company Group. Without limiting the generality of the foregoing, opinions or other information. Any from the Agreement Date until the Effective Time, any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets (including the activities of the Company Grouppursuant to Section 5.3). Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right6.8.
Appears in 1 contract
Sources: Merger Agreement (Tufin Software Technologies Ltd.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingUpon reasonable advance written notice, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Parent’s Representatives reasonable access access, during normal business hours, upon reasonable advance noticehours throughout the period prior to the Effective Time, to the propertiesCompany Properties and the Acquired Companies’ offices, offices and other plants, facilities, Contractspersonnel, Tax Returns and books and records records, and such other information concerning their respective businesses, properties and personnel as Parent may reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information, that in the reasonable judgment of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, could: (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in third parties; (b) violate any obligation of the Acquired Companies with respect to confidentiality, non-disclosure or privacy (provided that the Company shall use commercially reasonable efforts to secure the consent of any third party or enter into a manner that would result in joint defense agreement if necessary to permit the disclosure of applicable information to Parent and its Representatives); (c) jeopardize protections afforded the Company under the attorney-client privilege or the attorney work product doctrine; (d) violate any such trade secrets no longer being protected as such under applicable Law following such disclosureLaws; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business Acquired Companies’ business; provided, further, however, that in such instances the Company shall inform Parent of the Company Group or create a material risk of damage or destruction to any property or assets general nature of the Company Groupinformation being withheld and, upon Parent’s request, reasonably cooperate with Parent to provide such information, in whole or in part, in a manner that would not result in any of the outcomes described in the foregoing clauses (a) through (e). Any access No investigation pursuant to this Section 5.4 shall affect any representation or warranty in this Agreement of any party hereto or any condition to the properties obligations of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligationsparties hereto. All requests for access pursuant to this Section 7.4 5.4 must be directed to the General Counsel of the Company, Company or another person designated in writing by the Company. In Notwithstanding anything herein to the event that contrary, Parent and Acquisition Sub shall not, and shall cause their respective Representatives not to, contact any tenant, supplier or partner of the Company objects in connection with the Merger or any of the other transactions contemplated by this Agreement without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and Parent and Acquisition Sub acknowledge and agree that any request submitted such contact shall be arranged by and with a Representative of the Company participating. All information obtained by Parent and its Representatives pursuant to this Section 7.4 on 5.4 shall be treated as “Evaluation Material” (as defined in the basis of one or more Confidentiality Agreement) of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detailAcquired Companies for purposes of, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (Monogram Residential Trust, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX 9 and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticenotice provided in writing to Dennis Chang, interim Chief Financial Officer of the Company, or another Person designated in writing by the Company, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, : (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) (subject to the Company’s obligations under Section 6.03) such disclosure relates to interactions with other prospective buyers or transaction partners of the Company or the negotiation of this Agreement and the Transaction, or information relating to the analysis, valuation or consideration of the Transaction; (d) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (de) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (ef) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided that the Company shall use commercially reasonable efforts to provide such documents or information in a manner that does not violate or cause a default pursuant to, or give a third Person the right to terminate or accelerate the rights pursuant to, any Contract or cause such documents or information to cease to benefit from legal privilege, including by redacting or obtaining consent in connection therewith; provided, however, that in no event shall the Company (i) be required to amend or enter into a new Contract in order to effectuate the foregoing, or (ii) incur any expenses (other than de minimis expenses) relating to any of the foregoing. Subject to Section 7.19, nothing Nothing in this Section 7.4 7.06 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions appraisals or other informationopinions. Any investigation conducted pursuant to the access contemplated by this Section 7.4 7.06 will be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy or its obligations set forth above by electronic means if physical access is not permitted under applicable LawSubsidiaries. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations7.06. All requests for access pursuant to this Section 7.4 7.06 must be directed to Dennis Chang, the General Counsel Interim Chief Financial Officer of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Sources: Merger Agreement (Cepton, Inc.)
Access. At all times during From the period commencing with the execution and delivery of this Agreement and continuing date hereof until the earlier to occur of the termination of this Agreement pursuant to Article IX Closing or the Termination Date, Seller shall, and the Closing, the Company will (and will shall cause its Subsidiaries Affiliates to) afford Parent , provide Purchaser and its Representatives officers, directors, Affiliates, employees and representatives, upon reasonable notice, reasonable access during normal business hours, upon reasonable advance notice, hours to the properties, offices and other facilities, Contracts, books and records of or relating to the Acquired Business and personnel to the officers, directors, employees and representatives of Seller relating to the Company GroupAcquired Business; provided, except however, that the Company Seller and any Affiliate may restrict or otherwise prohibit access to withhold any documents document or information to the extent thatSeller believes in good faith, after consultation with counsel, that disclosure of such document or information would: (i) unreasonably interfere with the operation of the Acquired Business or Seller’s or any of its Affiliates’ other businesses; (ii) cause a violation of any agreement with a third party to which Seller, any of its Affiliates or the Acquired Business is a party, including any confidentiality agreement; (iii) jeopardize the attorney-client privilege of such party; (iv) contravene any Laws; or (v) in the case of personnel records, where the disclosure of such document or information could subject Seller or its Subsidiaries to risk of Liability (provided, in each case of clauses (ii), (aiv) any applicable Law or regulation requires the Company Group and (v), that Seller and its Affiliates will use commercially reasonable efforts to restrict or otherwise prohibit access to such documents or information; (b) access to provide such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with violate such Law or third-party agreement or give rise to the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company GroupLiability). Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures Purchaser acknowledges and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to agrees that any information obtained by Parent provided to it or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4officers, other than any information that has been madedirectors, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practiceAffiliates, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access employees and representatives pursuant to this Section 7.4 must be directed 5.2 is subject to the General Counsel confidentiality obligations set forth in the Confidentiality Agreement. If any of the Company, information or another person designated by the Company. In the event that the Company objects to any request submitted material furnished pursuant to this Section 7.4 on 5.2 includes material or information subject to the basis attorney-client privilege or attorney work-product doctrine or any other applicable privilege concerning pending or threatened Actions or governmental investigations, each Party understands and agrees that the Parties have a commonality of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, interest with respect to such matters, and it is the contractual termination desire, intention and mutual understanding of the Parties that the sharing of such material or acceleration right contemplated by clause (c) information is not intended to, and shall not, waive or diminish in any way the confidentiality of such material or information, nor its continued protection under the attorney-client protection, attorney work-product doctrine, or other applicable privilege, and shall remain entitled to such protection under those privileges, this Section 7.4Agreement, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightand the joint defense doctrine.
Appears in 1 contract
Access. At all times during Between the period commencing with the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingClosing Date, the Company will shall, and shall cause RAM, RT and each other member of the Company Group and their respective officers and employees to, (and will cause its Subsidiaries toi) afford Parent give Buyer and its Representatives reasonable access respective officers, employees, accountants, counsel, financing sources and other agents and representatives full access, during normal business hours, upon reasonable advance noticeto all buildings, to the offices, properties, offices plants and other facilitiesfacilities and to all contracts, Contractsinternal reports, books data processing files and records, Federal, state, local and foreign tax returns and records, commitments, books, records and personnel affairs of the Company Group, except that whether located on the premises of the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or informationat another location; (bii) access furnish promptly to such documents Buyer a copy of each report, schedule, registration statement and other document filed or information would give rise to a material risk of waiving received by any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business member of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access during such period pursuant to the requirements of Federal securities laws or regulations; (iii) permit Buyer to make such inspections as it may reasonably require; (iv) cause its officers and employees and the other Company Group officers and employees to furnish Buyer such financial, operating, technical and product data and other information with respect to the business and properties of the Company Group will be subject as Buyer from time to time may reasonably request, including -35- 40 without limitation financial statements and schedules; (v) allow Buyer the Company’s reasonable security measures opportunity to interview such employees and insurance requirements other personnel and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, Affiliates of the Company Group as they may satisfy reasonably request; and (vi) cooperate with Buyer and its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms Affiliates and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives representatives in arranging for an orderly transition in connection with any the transfer of control of the Company; provided, however, that no investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must 7.1 shall affect or be directed deemed to the General Counsel of the Company, modify any representation or another person designated warranty made by the CompanyCompany herein. In the event that the Company objects Materials furnished to any request submitted Buyer pursuant to this Section 7.4 on 7.1 may be used by Buyer for strategic and integration planning purposes relating to accomplishing the basis of one transactions contemplated hereby. Prior to the Closing, any information provided to Buyer or more its representatives pursuant to this Agreement shall be held by Buyer and its representatives in confidence in accordance with and subject to the terms of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightBuyer Confidentiality Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Charter Communications Holdings Capital Corp)
Access. At all times during Between the period commencing with the execution and delivery date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX Effective Time, Parent and the Closing, the Company will each (and will shall cause its Subsidiaries to) afford Parent access to authorized representatives (including, without limitation, attorneys, auditors, financial advisors and its Representatives reasonable access actuaries) of the other during normal business hourshours to all its books and records, upon reasonable advance noticefacilities, accountants and key employees and will permit such party and its authorized representatives to the properties, offices make such inspections as they may reasonably require and will cause its officers and employees to furnish such party and its authorized representatives such financial and operating data and other facilitiesinformation with respect to its business and properties as such party and its authorized representatives may from time to time reasonably request. No investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by the Company, ContractsParent or Merger Subsidiary, books and records and personnel provided, further, that the foregoing shall not require the Company or Parent to permit any inspection, or to disclose any information, that (i) in the reasonable judgment of the Company Groupor Parent, except that as the Company case may restrict or otherwise prohibit access to any documents or information to the extent thatbe, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in third parties or violate any of its obligations with respect to confidentiality if the Company or Parent, as the case may be, shall have used all reasonable efforts to obtain the consent of such trade secrets no longer being protected as third party to such under applicable Law following such disclosure; inspection or disclosure or (eii) would violate any attorney-client privilege of the Company or Parent, as the case may be. All requests for information made pursuant to this SECTION 6.8 shall be directed to such documents or information are reasonably pertinent to any adverse Legal Proceeding between Person as may be designated by the Company and its AffiliatesParent, on as the one handcase may be, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to SECTION 9.6 hereof. All such information shall be governed by the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration righthereinafter defined).
Appears in 1 contract
Sources: Merger Agreement (Capital Re Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingUpon reasonable advance written notice, the Company will (shall, and will shall cause its Subsidiaries to) , afford Parent and its Representatives Parent’s representatives reasonable access access, during normal business hours, upon reasonable advance noticehours throughout the period prior to the Effective Time, to the properties, offices and other facilities, Contracts, Acquired Companies’ books and records and personnel and, during such period, the Company shall furnish promptly to Parent all readily available information concerning its business as Parent may reasonably request; provided, however, that the Acquired Companies shall not be required to permit any inspection or other access, or to disclose any information, that in the reasonable judgment of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, could: (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets Trade Secrets of Persons in a manner that would result in Third Parties; (b) violate any such trade secrets no longer being protected as such obligation of the Acquired Companies with respect to confidentiality, non-disclosure or privacy; (c) jeopardize protections afforded the Company under applicable Law following such disclosurethe attorney-client privilege or the attorney work product doctrine; (d) violate any Legal Requirement; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business Acquired Companies’ businesses. No investigation pursuant to this Section 6.4 shall affect any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligationsparties hereto. All requests for access pursuant to this Section 7.4 6.4 must be directed to the General Counsel Chief Financial Officer of the Company, Company or another person designated in writing by the Company. In Notwithstanding anything herein to the event that contrary, Parent and Merger Sub shall not, and shall cause their respective representatives not to, contact any customer or supplier of the Company objects in connection with the Offer, the Merger or any of the other Transactions without the Company’s prior written consent (such consent not to be unreasonably withheld, conditioned or delayed), and Parent and Merger Sub acknowledge and agree that any request submitted such contact shall be arranged by and with a representative of the Company participating. All information obtained by Parent and its representatives pursuant to this Section 7.4 on the basis of one or more 6.4 shall be treated as “Evaluation Material” of the matters set forth in clauses (a) to (e) Acquired Companies for purposes of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement.
Appears in 1 contract
Access. At all times during the period commencing (a) Subject to compliance with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Closingapplicable Laws, the Company will shall afford to Parent, the Equity Provider and the Financing Sources and to their respective directors, officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (and will cause its Subsidiaries tocollectively, “Parent Representatives”) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance noticethroughout the period prior to the earlier of the Effective Time and the Termination Date, to the Company’s and its Subsidiaries’ officers, employees, properties, offices and other facilitiesContracts (including any Company Benefit Plan), Contractscommitments, books and records records, other than any such matters that relate to the negotiation and personnel execution of this Agreement, or to transactions potentially competing with or alternative to the transactions contemplated by this Agreement or proposals from other parties relating to any competing or alternative transactions. The foregoing notwithstanding, the Company shall not be required to afford such access if it would unreasonably disrupt the operations of the Company Groupor any of its Subsidiaries, except that the Company may restrict or otherwise prohibit access to would cause a violation of any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract agreement to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reportsSubsidiaries is a party, analyseswould, appraisalsin the reasonable judgment of the Company, opinions result in a loss of privilege or other information. Any investigation conducted pursuant trade secret protection to the access contemplated by this Section 7.4 Company or any of its Subsidiaries or would constitute a violation of any applicable Laws and in any such event, the parties hereto will be conducted use their reasonable best efforts to make appropriate substitute arrangements in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group result in such loss or create a material risk of damage or destruction violation.
(b) Parent hereby agrees that all information provided to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent it or any of its Parent Representatives in connection with any investigation conducted pursuant this Agreement and the consummation of the transactions contemplated hereby shall be deemed to be Information, as such term is used in, and shall be treated in accordance with, the access contemplated by this Section 7.4confidentiality agreement, other than any information that has been madedated as of April 30, is or becomes available to Parent or any of its Representatives by or from 2013, between the Company or any of its Representatives in and Parent (the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement”).
Appears in 1 contract
Sources: Merger Agreement (Saks Inc)
Access. At all times during (a) During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingPre-Closing Period, the Company will (will, and will cause its Subsidiaries to) , afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupand its Subsidiaries solely for purposes reasonably related to the consummation of the Transactions contemplated by this Agreement and the Transaction Documents, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would would, upon the advice of counsel, give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets Trade Secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 7.3 will be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 7.3 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures measures, health and safety measures, and insurance requirements and the terms of its Lease and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementany “invasive” testing or soil, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Lawair or groundwater sampling, including any Phase II environmental assessments. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations7.3. All requests for access pursuant to this Section 7.4 7.3 must be directed to the Company’s Chief Executive Officer, General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted .
(b) No information or knowledge obtained by Parent or Purchaser pursuant to this Section 7.4 7.3 or otherwise shall affect or be deemed to affect or modify any representation, warranty, covenant or agreement contained herein, the conditions to the obligations of the Parties to consummate the Offer and the Merger in accordance with the terms and provisions hereof or otherwise prejudice or limit in any way the rights and remedies of Parent or Purchaser hereunder, nor shall any such information, knowledge or investigation be deemed to affect or modify Parent’s or Purchaser’s reliance on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4representations, it must do so warranties, covenants and agreements made by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightAgreement.
Appears in 1 contract
Sources: Merger Agreement (Urgent.ly Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingInterim Period, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation (including COVID-19 Measures) requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the any Company Group Member is a party or otherwise bound would violate or cause a material default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons third Persons; (e) access would, in light of COVID-19 or COVID-19 Measures, jeopardize the health and safety of any officer or employee of the Company Group; or (f) relates to the activities of the Company pursuant to Section 5.3(a), except to the extent required to be provided pursuant to Section 5.3(f); provided that, any of clauses (a) through (e), the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall reasonably cooperate with Parent to allow the disclosure of such information (or as much of it as possible) in a manner that would result in not violate any such trade secrets no longer being protected as such under applicable Law following such disclosure; or of clauses (a) through (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand). Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, appraisals or opinions or other informationthat places an undue burden on the personnel of the Company Group. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets (including the activities of the Company Grouppursuant to Section 5.3(a)). Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement Agreements will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right6.8.
Appears in 1 contract
Sources: Merger Agreement (Cloudera, Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier (a) Prior to occur of the termination of this Agreement pursuant to Article IX and the Closing, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, Sellers will permit, and cause the Companies to permit, representatives of Buyer to have access, to the propertiesextent Sellers have legal authority to do so and to the extent not prohibited by Law or contract, offices and other facilitiesto the Data Room, Contractsall premises, properties (whether real, personal or otherwise), books and records of account, corporate records and personnel contracts of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information Companies pertaining to the extent thatTransferred Business (other than any such items, and for the avoidance of doubt all communications related thereto, specifically created by or for Sellers or their Affiliates in contemplation of a potential sale of the Transferred Business or a portion thereof, or containing forecasts or projections, including projections relating to potential Environmental remediation costs, attorney work product, internal peer reviews, business strategies, research on remediation technology or techniques, or containing information subject to confidentiality obligations or privileges); provided, however, that (i) Sellers and the Companies shall be entitled to redact all information relating to the Retained Businesses, (aii) Buyer will have such access only during regular business hours and will not unreasonably interfere with the Companies’ normal business operations, and (iii) except as permitted in accordance with Section 4.3, Buyer may not contact any applicable Law of the Companies’ suppliers or regulation requires the Company Group to restrict joint venture partners, or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to any counterparty, including a material risk financial institution, of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the a Company Group is a party or otherwise bound would violate or cause a default pursuant toparty, or give any Person without the right to terminate or accelerate prior written consent of Sellers. Buyer agrees that in no event will the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any above described access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not information include the right to perform invasive testing. Notwithstanding anything any soil, groundwater or other physical sampling or testing without a prior written request of Buyer to conduct such activities and the contrary in this Agreementprior written consent of Sellers.
(b) Buyer hereby irrevocably and unconditionally waives and releases all claims against Sellers, the Company may satisfy Companies, their Affiliates and their respective directors, officers, employees and agents for injury to or death of any persons or damage to property arising in any way from the exercise of rights granted to Buyer pursuant to Section 4.3(c), Section 4.6(a), Section 4.6(e) or Section 4.6(f) or the activities performed pursuant thereto by Buyer or its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms representatives on the premises and conditions properties of the Confidentiality Agreement Companies or their Affiliates. Buyer will apply defend, indemnify and hold harmless Sellers, their Affiliates and their respective successors, assignees, officers, directors, former directors of the Companies, partners, employees, agents and representatives (collectively, the “Sellers Indemnified Persons”) from and against, and reimburse them for, any and all Losses of any kind arising out of any injury to any information obtained by Parent or any death of its Representatives in connection with any investigation persons or damage to property occurring in, on or about the premises or properties of the Companies or their Affiliates as a result of such exercise of the rights granted in, or activities conducted pursuant to the access contemplated by this to, Section 7.44.6(a) or Section 4.6(e); provided, other than any information however, that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access Buyer shall have no indemnity obligation pursuant to this Section 7.4 must be directed 4.6(b) with respect to any such Losses that are solely the result of the negligence or willful misconduct of a Sellers Indemnified Person.
(c) Prior to the General Counsel of the CompanyClosing, and at all times if this Agreement is terminated, Buyer will, except as otherwise required by applicable Law or another person designated by the Company. In the event that the Company objects to any terms of a subpoena, request submitted for information, civil investigative demand or similar order issued by a Governmental Authority, hold confidential all information obtained pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, 4.6 with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.the
Appears in 1 contract
Sources: Securities Purchase Agreement (Ultrapar Holdings Inc)
Access. At all times during (i) During the period commencing with Pre-Closing Period, each Seller shall, at the execution prior written request of Buyer and delivery of this Agreement and continuing until without jeopardizing the earlier to occur attorney-client or other similar privilege (provided, that such Seller will inform Buyer of the termination general nature of this Agreement pursuant the document or information being withheld and reasonably cooperate with Buyer to Article IX and provide such document or information in a manner that would not result in the Closingloss or waiver of such privilege), the Company will (and will cause its Subsidiaries toi) afford Parent give Buyer and its Representatives reasonable access to the assets, offices and properties, and to copies of books and records, of the Related Company, (ii) furnish to Buyer and its Representatives such financial and operating data and any other information relating to the Related Company as such Persons may reasonably request, and (iii) instruct the employees, counsel and advisors of the Related Company to reasonably cooperate with Buyer in its investigation of such Related Company. Any investigation pursuant to this Section 12.04(a) shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business of the Related Company. All information provided or obtained pursuant to this Section 12.04(a) shall be kept confidential by Buyer and its Representatives in accordance with the NDA. The NDA shall terminate on the Closing Date unless this Agreement is terminated pursuant to Article 16, in which case the NDA shall remain in full force and effect.
(ii) For a period of four (4) years after the Closing Date, Buyer will, and will cause each Company to provide Sellers’ Representative, upon reasonable advance written notice to Buyer, with reasonable access (including the right to make, at Sellers’ Representative’s expense, photocopies thereof), during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records of such Company for the period prior to the Closing Date to the extent necessary to enable Sellers’ Representative or each Seller to prepare financial statements, Tax Returns or for any other legitimate purpose relating to this Agreement or the Transactions. Unless otherwise consented to in writing by Sellers’ Representative, Buyer shall not, and personnel shall cause each Company not to, for a period of four (4) years following the Closing Date, destroy or otherwise dispose of any of the books and records of such Company Groupfor any period prior to the Closing Date without first giving prior written notice to Sellers’ Representative and offering to allow Sellers’ Representative at least 60 days to review such books and records prior to such destruction or disposal and, except that at Sellers’ Representative’s expense, remove such books and records as Sellers’ Representative may select. Notwithstanding the Company may restrict foregoing, Buyer shall not be required to (A) provide access or otherwise prohibit access to any documents or disclose information to the extent that, (a) any applicable Law that such access or regulation requires disclosure would jeopardize the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege or other similar privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (eB) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to provide any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to dispute or proceeding between the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing ParentParties, in reasonable detail, which case the nature applicable rules of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company discovery shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightgovern.
Appears in 1 contract
Sources: Stock Purchase Agreement (Hydrofarm Holdings Group, Inc.)
Access. At all times (a) The Company shall, and shall cause its Subsidiaries and their respective Representatives to, afford to Parent and its Representatives, solely for the purposes of furthering the transactions contemplated hereby, reasonable access, during normal business hours upon reasonable advance notice to the Company, throughout the period commencing with from the execution and delivery of this Agreement and continuing date hereof until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingEffective Time to its and its Subsidiaries’ personnel and Representatives, properties (including the Company will Real Property for purposes of conducting surveys (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilitiesat Parent’s expense)), Contracts, books and records and such other information concerning its business, properties and personnel of the Company Group, except that as the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingrequest. Notwithstanding anything to the contrary contained in this AgreementSection 5.2(a), (i) any document, correspondence or information or other access provided pursuant to this Section 5.2(a) may be redacted or otherwise limited to prevent disclosure of information concerning the valuation of the Company, the Company may satisfy OP and the Mergers or other confidential or competitively sensitive information and (ii) Parent and its obligations set forth above by electronic means if physical access is Affiliates shall not permitted under applicable Law. The terms and conditions conduct any environmental investigation at any Company Real Property involving sampling or other intrusive investigation of the Confidentiality Agreement will apply to any information obtained by Parent air, surface water, groundwater, soil or any of its Representatives anything else at or in connection with any investigation conducted Company Real Property. All access pursuant to the access contemplated by this Section 7.45.2(a) shall be (A) conducted in such a manner as not to interfere unreasonably with the normal operations of the Company, other than any information that has been made, is or becomes available to Parent of its Subsidiaries or any of their respective Representatives and (B) coordinated through the Company’s designee.
(b) Notwithstanding anything to the contrary contained in this Section 5.2, none of the Company, any of its Subsidiaries and any of their respective Representatives by shall be required to provide any access, or from make available any document, correspondence or information, if doing so would, in the reasonable judgment of its legal counsel, (i) jeopardize the attorney-client privilege of the Company or any of its Representatives in Subsidiaries or (ii) conflict with any (A) Law applicable to the ordinary course Company, any of its Subsidiaries, any of their ongoing business arrangements consistent with past practicerespective Representatives or the assets, including in connection with Parent’s preparation or operation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel business, of the Company, any of its Subsidiaries or another person designated by any of their respective Representatives or (B) Contract to which the Company. In the event , any of its Subsidiaries or any of their respective Representatives is a party or by which any of their assets or properties are bound; provided that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, instances the Company shall cooperate with inform Parent of the general nature of the information being withheld and shall use commercially reasonable efforts to make appropriate substitute disclosure arrangements to permit reasonable substitute access or disclosure, including through under circumstances in which the use restrictions of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause preceding sentence apply.
(c) The parties hereto hereby agree that all information provided to them or their respective Representatives in connection with this Agreement and the consummation of this Section 7.4the transactions contemplated hereby shall be governed in accordance with the Confidentiality Agreement, obtaining a waiver with respect to dated as of May 12, 2021 between the Company and BRAVO Strategies IV LLC (the “Confidentiality Agreement”), which shall continue in full force and effect until the Effective Time or consent under such contractual termination or acceleration rightlater time as may be provided therein.
Appears in 1 contract
Access. At all times during From and after the period commencing with the execution and delivery date of this Agreement and continuing until the earlier to occur of the Applicable Closing and the termination of this Agreement pursuant to Article IX VIII, Seller shall, and shall cause its Affiliates and Representatives to, solely for purposes of integration planning and consummating the Transactions or as is necessary to implement the purchase of the Business by the Purchasers and the operation of the Business as of the Applicable Closing, (x) give the Company will (Purchasers, their operating partners who have executed a non-disclosure agreement with Seller or its Affiliates, and will cause its Subsidiaries to) afford Parent and its their respective Representatives reasonable access access, during normal business hours, upon reasonable advance noticewritten notice and in a manner so as not to interfere with the normal business operations of Seller and the Business, to the propertiesPurchased Assets, offices the Acquired Group and other facilities, Contracts, the books and records and personnel of the Company GroupBusiness and (y) furnish to the Purchasers, except their operating partners who have executed a non-disclosure agreement with Seller or its Affiliates, and their respective Representatives such financial and operating data and other information relating to the Business as such Persons may reasonably request; provided that the Company may restrict Purchasers, their operating partners who have executed a non-disclosure agreement with Seller or otherwise prohibit its Affiliates, and their respective Representatives comply with all applicable Laws and all applicable bona fide policies and reasonable requirements of Seller (including such policies and requirements relating to environmental, health, safety and security matters) in connection with any Purchaser’s or operating partner’s or their respective Representatives’ physical access to any documents or information Seller’s properties; provided, further, that Seller may reasonably restrict such access to the extent thatthat such access (i) would violate or result in a waiver of any attorney-client privilege of the Seller Entities or Seller, (aii) would violate any applicable Law (including merger control and competition Laws and data privacy and protection Laws applicable to employee personal information), (iii) would reasonably be expected to jeopardize the health and safety of any employee in light of COVID-19 or regulation requires any Pandemic Measures or (iv) would unreasonably disrupt the Company Group normal business operations of the Business or the Seller Entities; provided that, in each case, Seller shall, and shall cause its Representatives and Affiliates to restrict use commercially reasonable efforts to provide the Purchasers, their operating partners who have executed a non-disclosure agreement with Seller or otherwise prohibit its Affiliates, and their respective Representatives, to the extent possible, with access to the relevant information and access in a manner that would not reasonably be expected to result in the violation or waiver of any such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine violation of law or jeopardizing of the health and safety of its employees. Such rights of access explicitly exclude any Phase II environmental investigations or any other invasive or environmental analysis, testing or sampling, including any such analysis, testing or sampling of soil, surface water, air, groundwater or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant toenvironmental media, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligationsbuilding materials. All requests for access pursuant to this Section 7.4 4.01 must be directed to the General Counsel of the Company▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇ or another person such other Person designated by Seller in writing. For the Company. In avoidance of doubt, any information provided to or obtained by the event that the Company objects to any request submitted Purchasers by exercising their respective rights pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) 4.01 will be subject to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right5.01.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Hanesbrands Inc.)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingPre-Closing Period, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries or any third Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided that the Company shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall use its reasonable best efforts to allow the disclosure of such information (or as much of it as possible) in a manner that would not violate any of the foregoing clauses (a) through (e). Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.4 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions appraisals or other informationopinions. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.4 shall be conducted in a manner that (i) does not unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group will and its Subsidiaries (1) shall be subject to the Company’s reasonable safety and security measures and insurance requirements and will (2) shall not include any testing, sampling, monitoring or analysis of soil, groundwater, building materials, indoor or ambient air, or other environmental media without the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions written consent of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to Company, which may be withheld at the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with ParentCompany’s preparation of its consolidated financial statements or its public reporting obligationssole discretion. All requests for access pursuant to this Section 7.4 6.4 must be directed to the General Counsel of the Company, or another person designated in writing by the Company. In Except as may be otherwise permitted by this Section 6.4 and except in the event that ordinary course of business and not related to the Transactions, Parent and Merger Sub shall not, and shall cause their respective Representatives not to, contact any Person known by them to be an employee, independent contractor or other service provider of the Company objects to or any request submitted pursuant to this Section 7.4 on of its Subsidiaries not involved in the basis of one or more negotiation of the matters set forth Transactions or any Person known by them to be a partner, franchisee or supplier of the Company in clauses (a) to (e) connection with any of this Section 7.4, it must do so by providing Parentthe Transactions, in reasonable detaileach case, without the nature of what is being prevented and/or withheld and the reasons thereforCompany’s prior written consent, and prior to preventing ▇▇▇▇▇▇ and Merger Sub acknowledge and agree that any such access or withholding such information or documents from Parent contact shall be arranged and its Representatives, supervised by Representatives of the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightCompany.
Appears in 1 contract
Sources: Merger Agreement (Potbelly Corp)
Access. At all times during (i) During the period commencing with from the execution and delivery date of this Agreement and continuing until to the earlier to occur of the termination of Closing and the date that this Agreement pursuant to Article IX and the Closingis terminated in accordance with its terms, the Company will (and will cause its Subsidiaries to) afford Parent shall provide Buyer and its Representatives authorized representatives reasonable access access, during normal business hours, hours and upon reasonable advance notice, to the personnel, properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its AffiliatesSubsidiaries that are in the possession or under the control of the Company and its Subsidiaries to the extent relating to the transition of the Company’s and its Subsidiaries’ business to the Evolent Entities and otherwise cooperate and assist, on to the one handextent reasonably requested by Buyer with Buyer’s investigation of the properties, assets and financial condition of the Company; provided that (a) such access does not unreasonably interfere with the normal operations of the Company or its Subsidiaries, (b) such access shall occur in such a manner as the Company reasonably determines to be appropriate to protect the confidentiality of the transactions contemplated by this Agreement, (c) all requests for access shall be directed to the officers of the Company or such other Person as the Company may designate in writing from time to time (collectively, the “Designated Contacts”), and Parent and its Affiliates, on the other hand. Subject to Section 7.19, (d) nothing in this Section 7.4 will be construed to herein shall require the Company Group to provide access to, or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to disclose any information obtained by Parent to, Buyer if such access or any of its Representatives in connection with any investigation conducted pursuant disclosure (x) would cause significant competitive harm to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives Subsidiaries if the transactions contemplated by this Agreement are not consummated or (y) would be in violation of applicable Legal Requirements (including the HSR Act and other anti-competition laws). Other than the Designated Contacts or as expressly provided in the ordinary course preceding sentence, Buyer is not authorized to and shall not (and shall cause its employees, agents, representative and Affiliates not to) contact any officer, director, employee, franchisee, customer, supplier, distributor, lessee, lessor, lender or other material business relation of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation the Company or any of its consolidated financial statements Subsidiaries prior to the Closing without the prior written consent of the Company, except in the Ordinary Course of Business of Buyer and its Affiliates and without reference to the transactions contemplated hereby. Buyer shall, and shall cause its representatives to, abide by the terms of the Confidentiality Agreement with respect to such access and any information furnished to it or its public reporting obligations. All requests for access representatives pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.6A.
Appears in 1 contract
Access. At all times during (a) Subject to the period commencing with immediately following sentence, from the execution and delivery date of this Agreement and continuing until to the earlier to occur of the Closing or the termination of this Agreement pursuant to Article IX and the Closingin accordance with its terms, upon reasonable notice, the Company will (and will cause its Subsidiaries toi) afford provide Parent and its Representatives reasonable access to the offices, facilities, properties, assets, financial information, management-level employees, books and records, Contracts, documents and other information of or regarding the Company and the Business; (ii) furnish Parent and its employees and other Representatives with such other information regarding the Company or the Business as Parent may reasonably request; and (iii) cause the employees of the Company to reasonably cooperate with Parent and its Representatives, in each case, as Parent may reasonably request and which is (A) reasonably necessary to assist Parent in its investigation of the Company, the Business and the Equity Interests of the Company and (B) not inconsistent with applicable Law; provided, that any such investigation will be conducted during normal business hours, hours upon reasonable advance notice, prior written notice to the propertiesCompany (e-mail being sufficient), offices under the supervision of the Company’s CEO or CFO or their respective designees and other facilitiesin such a manner that does not unreasonably interfere with the Business or the safe commercial operations of the Company, Contracts, books and records and personnel maintains the confidentiality of the Transactions (including the Merger). Nothing in this Agreement will require or be construed to require the Company to provide any access or otherwise make available any information that in the reasonable judgment of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, would (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets Trade Secrets of Persons any third Person or violate the terms of any confidentiality agreement to which the Company is bound, (b) result in a manner that would violation of any applicable Law, (c) contravene any Contract in existence prior to the date of this Agreement, (d) result in a waiver of the protection of, or otherwise jeopardize, any such trade secrets no longer being protected as such under applicable Law following such disclosure; attorney-client or other legal privilege or work-product protection doctrines, (e) such documents result in the disclosure of sensitive or personal information are reasonably pertinent to any adverse Legal Proceeding between that would expose the Company to the risk of Liability, (f) cause significant competitive harm to the Company or the Business if the Transactions are not consummated or (g) reveal any bid received from any third party prior to the date hereof in connection with transactions similar to those contemplated by this Agreement and its Affiliatesany information and analysis (including financial analysis) relating to such bids; provided, on however, that the one handCompany shall inform Parent as to the general nature of, and Parent and its Affiliatesthe basis for, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted what is being withheld pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably above and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable substitute access or disclosuredisclosure that does not suffer from any of such impediments, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable which may include measures to as promptly as practicable permit such access and the furnishing disclosure of such information and documents in a manner to remove the basis for the objection, including by arrangement use of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, of certain information or entry into a customary joint defense agreement and, with respect to any information to be so provided. All information furnished to or obtained by Parent or any of its Affiliates or their respective employees or other Representatives pursuant to this Section 4.2 will be treated as confidential information pursuant to the contractual termination or acceleration right contemplated terms of the Confidentiality Agreement and the Clean Team Agreement, the provisions of which are incorporated herein by clause reference.
(b) In connection with the rights granted to Parent under this Section 4.2, (i) PARENT AND MERGER SUB WAIVE AND RELEASE ALL CLAIMS AGAINST THE COMPANY, THE SECURITYHOLDERS, THEIR RESPECTIVE AFFILIATES AND ANY OF THEIR RESPECTIVE REPRESENTATIVES ARISING IN ANY WAY THEREFROM OR IN ANY WAY CONNECTED THEREWITH AND (ii) PARENT HEREBY AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE COMPANY, THE SECURITYHOLDERS, THEIR RESPECTIVE AFFILIATES AND ANY OF THEIR RESPECTIVE REPRESENTATIVES FROM AND AGAINST ANY AND ALL LOSSES ATTRIBUTABLE TO PERSONAL INJURY, DEATH, PHYSICAL PROPERTY DAMAGE OR VIOLATION OF LAW OR THE COMPANY’S RULES, REGULATIONS, OR OPERATING POLICIES, ARISING OUT OF, RESULTING FROM OR RELATING TO ANY SITE OR FIELD VISIT OR OTHER DUE DILIGENCE ACTIVITY CONDUCTED BY PARENT, MERGER SUB, THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES WITH RESPECT TO THE COMPANY, THE BUSINESS, THE PROPERTIES OR ASSETS OF THE COMPANY OR THE EQUITY INTERESTS OF THE COMPANY, EXCEPT WHERE ANY SUCH CLAIM OR LOSS ARISES FROM OR RELATES TO THE WILLFUL MISCONDUCT OF THE COMPANY, THE SECURITYHOLDERS, THEIR RESPECTIVE AFFILIATES OR ANY OF THEIR RESPECTIVE REPRESENTATIVES.
(c) Upon completion of this Section 7.4Parent’s and Merger Sub’s due diligence, obtaining Parent will, at its sole cost and expense and without any cost or expense to the Company, the Securityholders or their respective Affiliates (i) repair all damage done to the properties or assets of the Company in connection with such due diligence investigation, (ii) restore the properties and assets of the Company to the same or better condition in existence prior to commencement of such due diligence investigation and (iii) remove all equipment, tools or other property brought onto the properties or assets of the Company in connection with such due diligence investigation. Any disturbance to the properties or assets of the Company (including the Real Property) resulting from P▇▇▇▇▇’s and Merger Sub’s due diligence will be promptly corrected by Parent.
(d) Prior to entering or accessing the properties or assets of the Company, at the reasonable request of the Company, Parent will provide, or will cause its Representatives to provide, to the Company a waiver with respect summary of its insurance coverages (e.g., worker’s compensation, employer’s liability, comprehensive general liability and automobile liability) that will cover the activities of Parent or its Representative. Each such insurance policy will (i) be primary insurance, (ii) list the Company and the D&O Indemnified Persons as additional insureds, (iii) waive subrogation against the Company and the D&O Indemnified Persons and (iv) provide for five (5) days’ prior written notice to the Company in the event of cancellation or consent under modification of such contractual termination policy or acceleration rightreduction in the coverage of such policy.
Appears in 1 contract
Sources: Merger Agreement (Archrock, Inc.)
Access. At all times during From and after the period commencing with the execution and delivery date of this Agreement and continuing until the earlier to occur of the Closing and the termination of this Agreement pursuant to Article IX IX, Seller shall, and the Closing, the Company will (and will shall cause its Subsidiaries subsidiaries to) afford Parent , give Purchaser and its Representatives reasonable access access, during normal business hours, upon reasonable advance noticewritten notice and solely for purposes of integration planning and consummating the Transactions, to the personnel, properties, offices books, contracts and other facilitiesRecords relating to the Company Group or the Business; provided, Contracts, books that Purchaser and records its Representatives (a) comply with all applicable Laws and personnel all applicable policies and reasonable requirements of the Company Group(including such policies and requirements relating to environmental, except health, safety and security matters) and (b) shall not contact or otherwise communicate with the customers or suppliers of the Company Group or the Business, unless 34 approved in writing in advance by Seller; provided, further, that Seller or the Company may restrict or otherwise prohibit such access to any documents or information to the extent that, as determined in the reasonable discretion of Seller or the Company, such access (ai) would unreasonably disrupt the normal operations of the Selling Entities, the Company or the Business, (ii) would violate or result in a waiver of any attorney- client privilege of the Selling Entities or the Company, (iii) would violate any applicable Law (including merger control and competition Laws and data privacy and protection Laws applicable to employee personal information), (iv) would breach any duty of confidentiality or regulation requires other similar obligation owed to any Person or (v) would reasonably be expected to jeopardize the health and safety of any employee in light of COVID-19 or any Pandemic Measures; provided, further, that if any such access is so restricted, to the extent reasonably practicable and permitted by Law, Seller shall notify Purchaser of the restriction, the rationale for the restriction and the general nature of the access or information being restricted and Seller and the Company Group shall use reasonable efforts to restrict or otherwise prohibit provide such access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would not result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; of the outcomes described in the foregoing clauses (i), (ii), (iii), (iv) or (e) such documents or information are reasonably pertinent to v). Such rights of access explicitly exclude any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group Phase II environmental investigations or any other invasive or environmental analysis, testing or sampling, including any such analysis, testing or sampling of its Representatives to prepare any reportssoil, analysessurface water, appraisalsair, opinions groundwater or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group environmental media, or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligationsbuilding materials. All requests for access pursuant to this Section 7.4 5.01 must be directed to the General Counsel of the Company, Seller or another person such other Person designated by the CompanyCompany in writing. In the event that When exercising its rights under this Section 5.01, Purchaser shall, and shall cause its Representatives to, use commercially reasonable efforts to minimize disruption to the Company objects and the Business. For the avoidance of doubt, any information provided to any request submitted or obtained by Purchaser by exercising its rights pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) 5.01 will be subject to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right6.01.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (John Bean Technologies CORP)
Access. At all times during (a) From the period commencing with the execution and delivery of this Agreement and continuing date hereof until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingClosing Date, Seller shall, (i) provide Buyer, the Company will (Financing Sources, the R&W Insurers and will cause its Subsidiaries to) afford Parent and its their respective Representatives reasonable access during normal business hours, upon reasonable advance notice, Working Hours to the premises, personnel, properties, offices assets and other facilities, Contracts, copies of books and records (including Tax records), Contracts and personnel other documents and data, of the Company Group; (ii) furnish to Buyer, except that the Financing Sources, the R&W Insurers and their respective Representatives such financial and operating data and any other information relating to the Company Group and in the possession of Seller or the Company Group members as such Persons may restrict or otherwise prohibit access to any documents or information to reasonably request; and (iii) instruct the extent thatemployees, (a) any applicable Law or regulation requires counsel and financial advisors of the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result cooperate with Buyer in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access investigation pursuant to this Section 5.04 shall be conducted in such manner as not to interfere unreasonably with the properties conduct of the Company Group. Seller shall not, and shall cause the Company Group will not to, take actions or omit to take actions which would reasonably be subject expected to impede, prevent or delay Buyer’s due diligence investigation of the Company Group. Notwithstanding the foregoing, Seller shall not be required to provide or cause to be provided access to or disclose or cause to be disclosed information where such access or disclosure would jeopardize the attorney-client or other privilege or contravene any Applicable Law; provided, that, in each such case, Seller shall provide Buyer with a reasonably detailed description of the information not provided and cooperate in good faith to design and implement alternative disclosure arrangements (including, to the Companyextent applicable, entry into a joint defense agreement) to enable Buyer to evaluate any such information. All information provided or obtained pursuant to this Section 5.04 shall be kept confidential by ▇▇▇▇▇, the Financing Sources, the R&W Insurers and their respective Representatives in accordance with the Confidentiality Agreement.
(b) From the date hereof until the Closing Date, without Seller’s reasonable security measures prior written consent, Buyer shall not, and insurance requirements and will shall cause its Affiliates not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreementto, contact any customers, vendors or suppliers of, or other third parties having business relationships with, the Company may satisfy Group members, provided that if Seller provides its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The written consent, any such contact shall be conducted in compliance with the terms and conditions of the Confidentiality Agreement will apply and Representatives of Seller shall be entitled to reasonable notice of, and participation in, all such meetings. Notwithstanding the foregoing, this Section 5.04(b) shall not restrict Buyer or its Affiliates from (x) any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant such contact that does not relate to the access Company Group, this Agreement or the transactions contemplated by this Section 7.4, other than any information that has been made, is hereby or becomes available (y) relates to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, discussions with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightNS Waiver.
Appears in 1 contract
Sources: Stock Purchase Agreement (FTAI Infrastructure Inc.)
Access. At all times during During the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX Pre-Closing Period, Seller and the ClosingCompany will, the Company will (and will use reasonable best efforts to cause its Subsidiaries to) , afford Parent Purchaser and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, including without limitation for purposes of due diligence and investigation for inventories, records of GMP / GLP / GCP, and clinical data and other material proprietary and personal necessary for the continuity of the Business, and to assist Purchaser in evaluating the Company’s governance and operational structure at the Closing in order to continue operating the Business following the Closing in substantially the same manner as it was operated prior to the Closing, except that the Company Seller may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation requires the Company Group Seller to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group Seller or any of its Subsidiaries is a party or otherwise bound would violate or cause a default pursuant to, or give any other Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets Trade Secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosureother Person; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company Seller and its Affiliates, on the one hand, and Parent Purchaser and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.6 will be construed to require the Company Group Seller, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.6 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group Seller and its Subsidiaries or create a material risk of damage or destruction to any property or assets of the Company GroupSeller or its Subsidiaries. Any access to the properties of the Company Group Seller and its Subsidiaries will be subject to the CompanySeller’s reasonable security measures measures, health and safety measures, and insurance requirements and will not include the right to perform invasive testingany “invasive” testing or soil, air or groundwater sampling, including any Phase II environmental investigations. Notwithstanding anything to the contrary in this Agreement, the Company Seller may satisfy its obligations set forth above in this Section 6.6 by electronic means if physical access is not reasonably feasible or would not be permitted under applicable LawLaw as a result. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent Purchaser or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.6. All requests for access pursuant to this Section 7.4 6.6 must be directed to the ▇▇▇▇▇▇’s General Counsel of the Company, or another person designated in writing by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightSeller.
Appears in 1 contract
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) shall, subject to restrictions or limitations as a result of COVID-19 or any COVID-19 Measures, afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, (i) to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Groupsolely for the purpose of consummating the Transactions and (ii) to discussions with the personnel of the Company, solely to the extent reasonably necessary for the purpose of planning for integration and transition, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or informationinformation or providing access to such documents or information would violate or cause a default pursuant to, or give a third Person the right terminate or accelerate the rights pursuant to, such Contract; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company, any such trade secrets no longer being protected as such under applicable Law following such disclosureof its Subsidiaries or any third Persons; or (ed) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing Nothing in this Section 7.4 will 6.8 shall be construed to require the Company Group Company, any of its Subsidiaries or any of its their respective Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.8 shall be conducted in a manner that does not (i) unreasonably and materially interfere with the conduct of the business of the Company Group and its Subsidiaries or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company or any of its Subsidiaries of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of the Company Groupor its Subsidiaries. Any access to the properties of the Company Group and its Subsidiaries will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingor subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary in this Agreementcontrary, the Company may satisfy its obligations set forth above by electronic means if physical access is Parent and Merger Sub shall not, and shall cause their respective Representatives not permitted under applicable Law. The terms and conditions to, contact any employee of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives Subsidiaries not involved in the ordinary course negotiation of their ongoing business arrangements consistent with past practicethe Transactions or any customer, including technology or other partner, vendor or supplier of the Company in connection with Parentthe Merger or any of the other Transactions, in each case, without the Company’s preparation prior written consent, and Parent and Merger Sub acknowledge and agree that any such contact shall be arranged and supervised by Representatives of its consolidated financial statements or its public reporting obligationsthe Company. All requests for access pursuant to this Section 7.4 6.8 must be directed to the General Counsel of the Company, Company or another person other Person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier (a) Subject to occur of the termination of this Agreement pursuant to Article IX and the ClosingSection 5.2, the Company will Mutual Non-Disclosure and Standstill Agreement dated February 11, 2003, between Buyer and LM Corporation (the "Confidentiality Agreement"), applicable Laws and will doctrines of attorney-client privilege, Seller shall, and shall cause its Subsidiaries Affiliates to) afford Parent , authorize and permit Buyer and its Representatives representatives (which term shall be deemed to include its independent accountants and counsel) to have reasonable access during normal business hours, upon reasonable advance notice, notice (to be given to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result identified in the disclosure last sentence of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 4.1(a)) and in such manner as will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of Business or the Company Group or create a material risk of damage or destruction GM Contract Assets, to any property or assets of the Company Group. Any access (i) their respective properties, books, records, operating instructions and procedures and all other information with respect to the properties of Business and the Company Group will be subject GM Contract Assets as Buyer may from time to time reasonably request and (ii) their officers and employees, in each case to the Company’s reasonable security measures extent necessary or appropriate for the purposes of obtaining any necessary Approvals of or Permits for the transactions contemplated by this Agreement and insurance requirements familiarizing Buyer with developments relating to the Business and will not include the right GM Contract Assets; provided, however, that nothing in this Section 4.1 shall obligate Seller or its Affiliates to perform invasive testingprovide Buyer with copies of information of a more confidential or proprietary nature than the information provided to Buyer during its due diligence investigation prior to the date of this Agreement. All such activities described in this Section 4.1(a) shall be coordinated in advance through ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ on behalf of Seller.
(b) Notwithstanding anything in this Agreement to the contrary contrary, in no event shall Buyer's knowledge, either prior to the execution of this Agreement or prior to the Closing, that any representation or warranty of Seller contained in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is or made pursuant to any certificate or Related Agreement delivered pursuant hereto, was not permitted under applicable Law. The terms true and conditions correct as of the Confidentiality Agreement will apply date hereof or thereof, as applicable, in any way limit (a) the right of Buyer to any information obtained by Parent or any assert such breach of its Representatives in connection with any investigation conducted pursuant a representation and warranty as a basis not to consummate the access transactions contemplated by this Section 7.4, other than any information that has been made, is Agreement or becomes available to Parent (b) the right of Buyer or any other Indemnified Party to assert such breach of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld a representation and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to warranty as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this an indemnification claim under Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right9.1(a).
Appears in 1 contract
Sources: Asset Purchase Agreement (Affiliated Computer Services Inc)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingCompany Merger Effective Time, the Company will (and will cause its Subsidiaries to) shall afford Parent and its Representatives reasonable access access, consistent with applicable Law, during normal business hours, upon reasonable advance noticerequest, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupParties in connection with the Transactions, except that the Company Parties may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or informationinformation or providing access to such documents or information would violate or cause a default pursuant to, or give a third Person the right terminate or accelerate the rights pursuant to, such Contract; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets (including source code) of Persons in a manner that would result in the Company Group or any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (ed) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19; provided, nothing that (other than in this Section 7.4 will be construed to require the case of clause (d)), the Company Group shall inform Parent of the general nature of the information being withheld and, upon Parent’s request, use its commercially reasonable efforts to allow for any access or any of its Representatives to prepare any reportsdisclosure in a manner that does not result in the effects set out in clauses (a) through (c), analyses, appraisals, opinions or other informationincluding by making appropriate substitute arrangements. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will 6.7 shall be conducted in a manner that does not (i) unreasonably and materially interfere with the conduct of the business of the Company Group or otherwise result in any significant interference with the prompt and timely discharge by officers, employees and other authorized Representatives of the Company Group of their normal duties or (ii) create a material risk of damage or destruction to any property or assets of any member of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testingor subsurface testing or any sampling, monitoring or analysis of soil, groundwater, building materials, indoor air, or other environmental media. Notwithstanding anything herein to the contrary, the Parent Parties shall not, and shall cause their respective Representatives not to, contact any employee of any member of the Company Group not involved in the negotiation of the Transactions or any customer, technology or other partner, vendor or supplier of the Company Group in connection with the Mergers or any of the other Transactions, in each case, without the Company’s prior written consent, and the Parent Parties acknowledge and agree that any such contact with any employee or any member of the Company Group shall be arranged and supervised by Representatives of the Company. All requests for access to employees or members of the Company Group pursuant to this Section 6.7 must be directed to the Chief Legal Officer of the Company or other Person designated by the Company. Notwithstanding anything to the contrary in this AgreementSection 6.7, nothing herein shall prevent Parent from, or shall be deemed to require the consent of the Company may satisfy to, contacting its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives own customers (i) in the ordinary course of their ongoing business arrangements consistent with past practice, including unrelated to the Transaction or the Company Group or (ii) in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed the Transaction but solely to the General Counsel of extent referencing publicly available information regarding the Company, Transactions or another person designated by the Company. In the event that the Company objects information related to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representativesbusiness (including, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objectionavoidance of doubt, including by arrangement of appropriate “counsel-to-counsel” disclosurefollowing the Closing), clean room proceduresin each case, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect solely to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver extent in compliance with respect to or consent under such contractual termination or acceleration rightapplicable Law.
Appears in 1 contract
Sources: Agreement and Plan of Merger (E2open Parent Holdings, Inc.)
Access. At all times during From the period commencing with the execution and delivery of this Agreement and continuing date hereof until the earlier Closing Date, subject to occur of the termination of this Agreement pursuant to Article IX and the ClosingConfidentiality Agreement, the Company will (and will cause its Subsidiaries to) shall afford Parent Buyer and its Representatives representatives reasonable access (including for inspection and copying) at all reasonable times during normal business hours, hours upon reasonable advance notice, notice to the properties, offices offices, plants and other facilitiesfacilities (under the supervision of Company personnel), Contracts, and books and records and personnel of the Company, and shall furnish, and shall cause its representatives to furnish, the Buyer with such financial, operating and other data and information in connection with the Company Groupas the Buyer may reasonably request. Such access shall be granted in a manner not to interfere unreasonably with the conduct of the Company’s business. Notwithstanding the foregoing, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Material Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; information or (b) access to such documents or information would give rise to or may (in the reasonable opinion of the Company’s counsel) cause a material risk waiver of waiving any the attorney-client privilege, or other privilege or work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to . From and after the date of this Agreement until the Closing, without the prior written consent of the Company, which the Company Group is a party may not be unreasonably withheld, conditioned or otherwise bound would violate or cause a default pursuant delayed, Buyer shall not contact any suppliers to, or give customers of, the Company other than to the extent that such suppliers of the Company or customers of the Company are also suppliers to the Buyer or customers of the Buyer, and then solely to the extent such contact is in the ordinary course of business and solely with respect to matters unrelated to the Transactions (such contact being further subject to the provisions of Section 6.07 hereof); provided, that the Company and Buyer shall, following the date hereof, coordinate in good faith to arrange an introduction by the Company of Buyer to its customers, provided, further, that in no event shall the Buyer contact any Person customers or suppliers of the right to terminate or accelerate Company other than as provided by this sentence. Buyer shall, and shall cause its Representatives (as defined in the rights pursuant Confidentiality Agreement) to, abide by the terms of the Confidentiality Agreement with respect to any access or information provided pursuant to this Section 6.02. Notwithstanding the foregoing, (i) if withholding any access or information pursuant to this Section 6.02, the Company shall notify Buyer in writing of the nature of the access or information being withheld and (ii) the Company shall use commercially reasonable efforts to accommodate reasonable requests by Buyer to implement alternative arrangements to allow for such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would not result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations events set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth out in clauses (a) to or (eb) of this Section 7.4, it must do so by providing Parent, the foregoing (including redacting parts of the documents or preparing “clean” summaries of information in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior order to preventing allow Buyer such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent fullest extent reasonably practicable under such contractual termination or acceleration rightthe circumstances).
Appears in 1 contract
Sources: Merger Agreement (Arcbest Corp /De/)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingInterim Period, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company Group, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law or regulation Contract requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the any Company Group Member is a party or otherwise bound would violate or cause a material default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Third Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent related to any adverse Legal Proceeding Proceedings between the Company and or its Affiliates, on the one hand, and Parent and its Affiliates, Affiliates (including Guarantor) on the other hand. Subject to Section 7.19; provided that (in the case of clauses (a) through (d) only), nothing in this Section 7.4 will be construed to require the Company Group shall give notice to Parent of the fact that it is withholding such information or documents and thereafter the Company shall reasonably cooperate with Parent to allow the disclosure of such information (or as much of it as possible) in a manner that would not violate any of its Representatives to prepare any reports, analyses, appraisals, opinions or other informationclauses (a) through (d). Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.7 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed to the General Counsel of the Company, or another person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Sources: Merger Agreement (Fathom Digital Manufacturing Corp)
Access. At all times during Prior to the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the ClosingClosing Date, the Company will (and BRS Newco will, and will cause its Subsidiaries their Affiliates to) afford Parent , permit Purchaser and its Representatives to have reasonable access to the management, properties, offices, personnel, Contracts, and books and records of the Group Companies during normal business hours, working hours and upon reasonable advance notice, notice to the propertiesextent that such access is reasonably necessary to effect the transactions contemplated by this Agreement; provided, offices that Purchaser and its Representatives will not disrupt the normal operations of the Business or other facilities, Contracts, books and records and personnel operations or activities of the Company Groupor its Affiliates (including the Group Companies). Notwithstanding the foregoing, except that (i) nothing herein will require any employee or representative of a Group Company to provide any information regarding the Business in any other format or otherwise to manipulate or reconfigure any data regarding the Business, (ii) nothing herein will require the Company may restrict or otherwise prohibit its Affiliates to provide Purchaser or its Representatives with access to or copies of (A) any documents information the disclosure of which would result in a loss of attorney-client or attorney work product privilege or any similar protection, (B) any information, including sensitive customer information, manufacturing processes, pricing lists or other information that relates to the extent thatBusiness, (a) the disclosure of which would reasonably be expected to violate any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk terms of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the a Group Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure loss of any material protectable interests in trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on Group Companies if the one hand, and Parent and its Affiliates, on the other hand. Subject to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access transactions contemplated by this Section 7.4 Agreement are not consummated (provided, that the Company will be conducted use commercially reasonable efforts to provide such information in a manner that does not unreasonably and materially interfere violate such Law or is in accordance with the conduct such Contract), (C) personnel records of the business Business Employees including records relating to individual performance or evaluation records, medical histories, individual employee benefit information or other information concerning Business Employees, the disclosure of which would reasonably be expected to violate any applicable Law (provided, that the Company Group or create will use commercially reasonable efforts to provide such information in a material risk manner that does not violate such Law), (D) any income Tax Returns of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent Equityholder or any of its Representatives their respective Affiliates (other than the Group Companies) and (E) any information to the extent related to the sale process, bids received from other Persons in connection with any investigation conducted pursuant to the access transactions contemplated by this Section 7.4Agreement and information and analysis (including financial analysis) relating to such bids; and (iii) nothing contained herein will permit Purchaser to conduct any intrusive or invasive environmental sampling (including any soil, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligationssediment and groundwater sampling). All requests for access pursuant will be made to this Section 7.4 must such Representatives of the Company as the Company will designate, who will be directed solely responsible for coordinating all such requests and access thereunder. Notwithstanding the foregoing, prior to the General Counsel Closing, Purchaser, Purchaser Guarantor and their Representatives shall not contact or in any other manner communicate with the customers and suppliers of the Business in connection with the transactions contemplated hereby without (1) the prior written consent of the Company, which consent may not be unreasonably withheld, delayed or another person designated by conditioned, and (2) the Company. In the event that participation of the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one in such contact or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightcommunication.
Appears in 1 contract
Sources: Recapitalization and Equity Purchase Agreement (United States Steel Corp)
Access. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX VIII and the ClosingEffective Time, the Company will (and will cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, offices and other facilities, Contracts, books and records and personnel of the Company GroupCompany, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that, that (a) any applicable Law law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine or other privilege applicable to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any a third Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosurethird Persons; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on the one hand, and Parent and its Affiliates, on the other hand; provided, that such access may be provided remotely to the extent the Company determines necessary or advisable in light of the COVID-19 pandemic. Subject to Section 7.19, nothing Nothing in this Section 7.4 6.8 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.4 6.8 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business of the Company Group or create a material risk of damage or destruction to any property or assets of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations6.8. All requests for access pursuant to this Section 7.4 6.8 must be directed to the General Counsel of the Company, or another person Person designated by the Company. In the event that the Company objects to any request submitted pursuant to this Section 7.4 on the basis of one or more of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration right.
Appears in 1 contract
Sources: Merger Agreement (Mobileiron, Inc.)
Access. At all times during During the period commencing with from the execution and delivery date of this Agreement and continuing until to the earlier to occur of the termination of Closing and the date that this Agreement pursuant to Article IX and is terminated in accordance with its terms (the Closing“Pre-Closing Period”), the Company will (shall, and will shall use commercially reasonable efforts to cause its Subsidiaries representatives to, (i) afford Parent grant to Buyer and its Representatives authorized representatives, reasonable access access, during normal business hours, hours and upon reasonable advance notice, to the propertiespersonnel and properties and to all existing books and records, offices Tax Returns, work papers, Licenses and other facilities, Contracts, books documents and records and personnel information (provided that no such access shall be granted for the purpose of the Company Group, except that the Company may restrict or otherwise prohibit access to conducting any documents or information to the extent that, (a) any applicable Law or regulation requires the Company Group to restrict or otherwise prohibit access to such documents or information; (b) access to such documents or information would give rise to a material risk of waiving any attorney-client privilege, work product doctrine environmental audit or other privilege applicable investigation) relating to such documents or information; (c) access to a Contract to which the Company Group is a party or otherwise bound would violate or cause a default pursuant to, or give any Person the right to terminate or accelerate the rights pursuant to, such Contract; (d) access would result in the disclosure of any material trade secrets of Persons in a manner that would result in any such trade secrets no longer being protected as such under applicable Law following such disclosure; or (e) such documents or information are reasonably pertinent to any adverse Legal Proceeding between the Company and its Affiliates, on Subsidiaries that are in the one hand, and Parent possession or under the control of the Company and its AffiliatesSubsidiaries and (ii) provide Buyer and Buyer’s representatives with copies of such existing books, on the records, Tax Returns, work papers, Licenses and other hand. Subject documents and information relating to Section 7.19, nothing in this Section 7.4 will be construed to require the Company Group or any of its Representatives to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the as Buyer may reasonably request; provided that (a) such access contemplated by this Section 7.4 will be conducted in a manner that does not unreasonably and materially interfere with the conduct of the business normal operations of the Company Group or create a material risk of damage or destruction its Subsidiaries, (b) all requests for access shall be directed to any property or assets the Chief Financial Officer of the Company Group. Any access to the properties of the Company Group will be subject to the Company’s reasonable security measures and insurance requirements and will not include the right to perform invasive testing. Notwithstanding anything to the contrary in this Agreement, the Company may satisfy its obligations set forth above by electronic means if physical access is not permitted under applicable Law. The terms and conditions of the Confidentiality Agreement will apply to any information obtained by Parent or any of its Representatives in connection (with any investigation conducted pursuant to the access contemplated by this Section 7.4, other than any information that has been made, is or becomes available to Parent or any of its Representatives by or from the Company or any of its Representatives in the ordinary course of their ongoing business arrangements consistent with past practice, including in connection with Parent’s preparation of its consolidated financial statements or its public reporting obligations. All requests for access pursuant to this Section 7.4 must be directed a copy to the General Counsel of the Company) or such other Person as the Company may designate in writing from time to time (the “Designated Contact”), and (c) nothing herein shall require the Company to provide access to, or another person designated to disclose any information to, Buyer if such access or disclosure would be in violation of applicable Legal Requirements of any Governmental Entity (including the HSR Act and other anti-competition Legal Requirements) or the provisions of any currently existing agreement to which the Company or any of its Subsidiaries is a party or, subject to compliance with Section 3B, any agreement to which the Company or any Subsidiary becomes a party during the Pre-Closing Period. Other than the Designated Contact or as expressly provided in the preceding sentence or as authorized by the Company. In the event that Designated Contact, Buyer is not authorized to and shall not (and shall cause its employees, agents, representatives and Affiliates not to) contact any employee, customer, patient, supplier, distributor, lessee, lessor, lender or other material business relation of the Company objects or any of its Subsidiaries prior to the Closing regarding the transactions contemplated by this Agreement or the Company’s and its Subsidiaries’ businesses without the prior written consent of the Representative, which consent shall not be unreasonably withheld, conditioned or delayed. Buyer shall, and shall cause its representatives to, abide by the terms of the Confidentiality Agreement with respect to such access and any request submitted information furnished to it or its representatives pursuant to this Section 7.4 on 3A. Buyer and its Representatives will hold any such information in accordance with the basis of one or more terms of the matters set forth in clauses (a) to (e) of this Section 7.4, it must do so by providing Parent, in reasonable detail, the nature of what is being prevented and/or withheld and the reasons therefor, and prior to preventing such access or withholding such information or documents from Parent and its Representatives, the Company shall cooperate with Parent to make appropriate substitute arrangements to permit reasonable substitute access or disclosure, including through the use of reasonable best efforts to take such actions and implement appropriate and mutually agreeable measures to as promptly as practicable permit such access and the furnishing of such information and documents in a manner to remove the basis for the objection, including by arrangement of appropriate “counsel-to-counsel” disclosure, clean room procedures, redaction and other customary procedures, entry into a customary joint defense agreement and, with respect to the contractual termination or acceleration right contemplated by clause (c) of this Section 7.4, obtaining a waiver with respect to or consent under such contractual termination or acceleration rightConfidentiality Agreement.
Appears in 1 contract