Access. (a) Upon reasonable notice, each of DISH and EchoStar 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 prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein. (b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine. (c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (EchoStar CORP), Agreement and Plan of Merger (DISH Network CORP)
Access. (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, At all times during normal business hours upon prior notice throughout the period prior commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article IX and the Effective Time, the Company shall afford Parent, Acquisition Sub, their officers, their employees and their financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable notice, to their respective personnel, the properties, Contracts, filings with Governmental Entities and books and records andrecords, during such periodcontracts, each analyses, tax returns, data, regulatory materials, reports, projections, plans, systems, senior management, commitments, offices and other facilities, properties and personnel of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestCompany; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, information to the extent legal counsel for the Company reasonably determines that (a) any applicable Law requires the Company to restrict or otherwise prohibit access to disclose any such documents or information, that in the reasonable judgment of (b) granting such party would: (i) access would violate any obligation obligations of such party the Company or any of its Subsidiaries with respect to confidentiality to any Person or privacy; (ii) jeopardize protections afforded such party under otherwise breach, contravene or violate any then effective Contract to which the attorney-client privilege, the attorney work product doctrine Company or any other applicable privilege; of its Subsidiaries is a party, or (iiic) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect access to such information. Each party shall use commercially reasonable security measures to access the systems and documents or information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall that may be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 applicable to such protection under these privilegesdocuments or information. In the event that the Company does not provide access or information in reliance on the preceding sentence, this Agreement and it shall give notice to Parent of the joint defense doctrine.
fact that it is withholding such information or documents pursuant to clause (a) through (c) No exchange above, as applicable, and thereafter 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 waive such a privilege. Any investigation conducted pursuant to the access contemplated by this Section 7.7 shall be conducted in a manner that does not unreasonably interfere with the conduct of information the business of the Company or investigation by DISH its Subsidiaries or EchoStar create a risk of damage or destruction to any property or assets of the Company or any of their respective its Subsidiaries. Any access to the properties of the Company or any of its Subsidiaries shall be subject to the Company’s reasonable security measures and insurance requirements and shall not include the right to perform invasive testing without the Company’s prior written consent, in its sole discretion. The terms and conditions of the Confidentiality Agreement shall apply to any information obtained by Parent or any of its 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 7.7. Nothing in this Section 7.7 shall be construed to require the Company, any of its Subsidiaries or any Representatives shall of any of the foregoing to prepare any reports, analyses, appraisals, opinions or other information. No investigation pursuant to this Section 7.7 will affect or be deemed to affect, modify or waive any of the representations and or warranties of EchoStar or DISH, respectively, set forth the Parties contained in this AgreementAgreement or prejudice the rights and remedies of Parent or Acquisition Sub hereunder solely as a result of such investigation.
Appears in 2 contracts
Sources: Merger Agreement (Elanco Animal Health Inc), Merger Agreement (Aratana Therapeutics, Inc.)
Access. (a) Upon reasonable noticeSubject to compliance with applicable Law, each of DISH and EchoStar shall, and the Company shall cause each of their respective Subsidiaries to, afford to the Parent and its officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other party representatives (collectively, “Representatives”) and the other partyParent’s financing sources and their Representatives reasonable access, access during normal business hours upon prior notice hours, throughout the period prior to the earlier of the Effective TimeTime and the Termination Date, to their respective personnel, the Company’s and its Subsidiaries’ properties, Contracts, filings with Governmental Entities and commitments, books and records and, during such period, each of DISH the Company shall, and EchoStar shall cause its Subsidiaries to, furnish promptly to the other party Parent and its Representatives and Parent’s financing sources and their Representatives all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested; providedprovided that no investigation pursuant to this Section 6.2 shall be deemed to modify any representation or warranty made by the Company herein. The foregoing notwithstanding, however, that each party the Company shall not be required to permit afford such access or furnish such information if it would unreasonably disrupt the operations of the Company or any inspection of its Subsidiaries, would unreasonably disrupt or other accessrisk materially delaying the Company’s completion of restatements of its historical financial statements, would cause a violation of the confidentiality provisions of any Contract to which the Company or any of its Subsidiaries is a party, would cause a risk of a loss of privilege or would constitute a violation of any applicable Law. At the request of Parent, through the period prior to disclose any information, that in the reasonable judgment earlier 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 privilegeEffective Time and the Acceptance Date, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and Company shall use its reasonable best efforts (which shall not include any obligation to make alternative arrangements pay any fee or incur any liability or obligation to any third party) to obtain waivers from person who are parties to Contracts with the Company or its Subsidiaries that contain confidentiality provisions in order for Parent to be provided reasonable access to such Contracts. Without limiting the foregoing, the Company shall keep Parent apprised on a reasonably prompt basis of material developments relating to the Restatement and Related Matters and shall provide Parent two (2) Business Days’ advanced notice of the time the Company becomes Current (as defined in Annex I). If at any time the Company believes that it will not achieve the revenue, EBITDA or cash flow projections set forth in the 2007 quarterly plan attached to Section 6.2(a) of the Company Disclosure Schedule, it will promptly notify and consult in good faith with Parent with respect to such information. Each party shall use commercially reasonable security measures anticipated failure to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinachieve such projections.
(b) To the extent Parent hereby agrees that any of the all information or material furnished pursuant provided to this Agreement may include material subject to the 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, Representatives in connection with this Agreement and the joint defense doctrine.
(c) No exchange consummation of information or investigation by DISH or EchoStar or any of their respective Representatives the transactions contemplated hereby shall affect or be deemed to affectbe Evaluation Material, modify or waive as such term is used in, and shall be treated in accordance with, the representations confidentiality agreement, dated as of September 28, 2006, between the Company and warranties of EchoStar or DISH, respectively, set forth in this Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Access. (a) Upon reasonable noticeFor purposes of furthering the Transactions, each during the period from the date of DISH this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall (i) afford Parent and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s its Representatives reasonable access, access during normal business hours upon prior reasonable advance notice throughout the period prior to the Effective TimeCompany, to their respective personnelits and its Subsidiaries’ officers, employees, properties, Contractscontracts, filings with Governmental Entities and commitments, books and records andand any report, during such period, each of DISH and EchoStar shall furnish promptly schedule or other document filed or received by it pursuant to the requirements of applicable Laws (other party all available than information concerning its business as DISH the value of the Company or EchoStar, as relating to the case may be, may reasonably request; provided, however, that each party shall not be required process leading to permit the negotiation and execution of this Agreement and any inspection communications relating to any Company Acquisition Proposal or other access, or to disclose any information, that in the reasonable judgment of such party would: (iCompany Competing Transaction) violate any obligation of such party with respect to confidentiality or privacy; and (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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect available to such information. Each party shall use commercially reasonable security measures 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 access the systems and information extent reasonably requested by Parent in order to discuss the affairs of the other partyCompany and its Subsidiaries. During such period, the Company shall, and shall cause its Subsidiaries to, without limitation to the preceding obligations, make available to Parent a copy of any written communication (and a summary of any material oral communication) received from the FDA or similar Governmental Authority promptly after receipt of such communication. All confidential information obtained by each party and its Representatives access pursuant to this Section 4.8(a5.3(a) shall be subject (i) conducted in such a manner as not to interfere unreasonably with the Confidentiality Agreement so long as it satisfies normal operations of the definition Company or any of “Evaluation Material” contained thereinits Subsidiaries and (ii) coordinated through the Chief Executive Officer of the Company or a designee thereof.
(b) To Notwithstanding anything to the extent that contrary contained in this Section 5.3, 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 reasonable judgment of the information or material furnished pursuant to this Agreement may include material subject to Company’s outside legal counsel, (i) jeopardize the attorney-client privilege, work product doctrine privilege of the Company or any other of its Subsidiaries or (ii) conflict with any (A) Law applicable privilegeto the Company or any of its Subsidiaries or the assets, or operation of the parties understand business, of the Company or any of its Subsidiaries or (B) Material Company Contract to which the Company or any of its Subsidiaries is party or by which any of their assets or properties are bound; provided, however, that in such instances the Company shall inform Parent of the general nature of the information being withheld and agree the basis for withholding and, upon Parent’s request, reasonably cooperate with Parent to provide such information, in whole or in part, in a manner 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 would not intended to, and shall not, waive or diminish result in any way of the confidentiality of outcomes described in the foregoing clauses (i) and (ii), including using commercially reasonable efforts to seek consent from the applicable third party to any such material or its continued protection Material Company Contract under the attorney-client privilege, work product doctrine or any other applicable privilege. All such information that which disclosure 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 doctrineprohibited.
(c) No exchange of information or investigation by DISH Parent or EchoStar or any of their respective its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, the Company set forth in this Agreement.
(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 Confidentiality Agreement, dated as of May 8, 2014, between the Company and Parent (the “Confidentiality Agreement”), which shall continue in full force and effect in accordance with its terms.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Insite Vision Inc), Merger Agreement (Insite Vision Inc)
Access. (a) Upon From the date of this Agreement until the Effective Time, the Company shall (i) upon reasonable prior notice, each of DISH give Parent and EchoStar shallPurchaser, their officers and shall cause each a reasonable number of their respective Subsidiaries toemployees and their authorized representatives, afford to the other party and the other party’s Representatives reasonable access, access during normal business hours upon prior notice throughout the period prior to the Effective TimeCompany Agreements, to their respective contracts, books, records, analysis, projections, plans, systems, personnel, propertiescommitments, Contracts, filings offices and other facilities and properties of the Company and its accountants and accountants’ work papers and (ii) furnish Parent and Purchaser on a timely basis with Governmental Entities such financial and books operating data and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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 privilegebusiness, 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) properties and (iii) such party shall inform the other party Company Agreements of the nature of the information being withheld, Company as Parent and shall Purchaser may from time to time reasonably request and use its reasonable best efforts to make alternative arrangements with respect available at all reasonable times during normal business hours to such information. Each party shall use commercially reasonable security measures to access the systems officers, employees, accountants, counsel, financing sources and information other representatives of Parent and Purchaser the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company’s business, properties, prospects and personnel as Parent or Purchaser may reasonably request. In addition, the Company shall furnish promptly to Parent (x) a copy of each material report, schedule, statement and other party. All confidential information obtained document submitted or filed by each party it with any Governmental Entity and its Representatives pursuant to this Section 4.8(a(y) shall be subject the internal or external reports prepared by it in the ordinary course that are reasonably required by Parent promptly after such reports are made available to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinCompany’s personnel.
(b) To the extent that any of the information No investigation heretofore conducted or material furnished conducted pursuant to this Agreement may include material subject Section 6.2 shall affect any representation or warranty made by the parties hereunder or any conditions to the obligations of the parties hereunder or any condition or requirement set forth in Annex I.
(c) Notwithstanding anything to the contrary set forth herein, the Company shall not be required to provide access to, or to disclose information, where such access or disclosure would jeopardize the attorney-client privilegeprivilege of the Company or contravene any law (including without limitation the HSR Act), work product doctrine in which latter case the Company shall provide access to or any disclose such information to the fullest extent permitted by such law and shall cooperate with Parent in seeking all necessary exemptions, permits or other applicable privilegeconsents or approvals to permit the Company to provide Parent (or, the parties understand and agree that they have a commonality if necessary, its counsel or other representatives in lieu 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 Parent) access to, and shall notor to disclose to Parent, 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 the joint defense doctrineinformation.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Cytyc Corp), Merger Agreement (Adeza Biomedical Corp)
Access. (a) Upon For purposes of furthering the transactions contemplated by this Agreement and upon reasonable prior notice, each of DISH the Company shall afford Parent and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s its Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the First Effective Time, to their respective the Company’s and the Company Subsidiaries’ personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar the Company shall furnish promptly to the other party Parent all available information concerning its business as DISH or EchoStar, as the case may be, Parent may reasonably request; provided, however, that each party 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 such party the Company would: (i) violate any obligation of such party the Company with respect to confidentiality or privacy; (ii) in light of COVID-19 or COVID-19 Measures, jeopardizes the health and safety of any officer or employee of the Company or any of the Company Subsidiaries; (iii) jeopardize protections afforded such party the Company under the attorney-client privilege, the attorney work product doctrine or any other applicable privilegesimilar legal privilege or protection; or (iiiiv) violate any Legal Requirement; (v) result in the disclosure of any trade secrets of any third parties, including competitively sensitive information, information concerning the valuation of the Company or any Covid-19 Measureof the Company Subsidiaries or personal information that would expose the Company to the risk of liability; or (vi) cause a material breach of, or material default pursuant to, any binding agreement entered into by the Company or any Company Subsidiary; provided that in each case of clauses (i), (ii) and (iii) such party the Company shall inform the other party Parent of the nature of the information being withheld, and shall use its commercially reasonable best efforts to make alternative arrangements with respect that would allow Parent (or its applicable Representative) access to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) For purposes of furthering the transactions contemplated by this Agreement and upon reasonable prior notice, Parent shall afford the Company and its Representatives reasonable access, during normal business hours throughout the period prior to the First Effective Time, to Parent’s and the Parent Subsidiaries’ personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, Parent shall furnish promptly to the Company all available information concerning its business as the Company may reasonably request; provided, however, that Parent shall not be required to permit any inspection or provide other access, or to disclose any information, that in the reasonable judgment of Parent would: (i) violate any obligation of Parent with respect to confidentiality or privacy; (ii) in light of COVID-19 or COVID-19 Measures, jeopardizes the health and safety of any officer or employee of Parent or any of the Parent Subsidiaries; (iii) jeopardize protections afforded Parent under the attorney-client privilege, the attorney work product doctrine or similar legal privilege or protection; (iv) violate any Legal Requirement; (v) result in the disclosure of any trade secrets of any third parties, competitively sensitive information, information concerning the valuation of Parent or any of the Parent Subsidiaries or personal information that would expose Parent to the risk of liability; or (vi) cause a material breach of, or material default pursuant to, any binding agreement entered into by Parent or any Parent Subsidiary; provided that in each case Parent shall inform the Company of the nature of the information being withheld, and shall use its commercially reasonable best efforts to make alternative arrangements that would allow the Company (or its applicable Representatives) access to such information.
(c) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties hereto 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 Agreement, and under the joint defense doctrine.
(cd) In no event shall the work papers of any of the parties hereto and their respective Subsidiaries’ independent accountants and auditors be accessible to any other party hereto or any of its Representatives unless and until such accountants and auditors have provided a consent related thereto in form and substance reasonably acceptable to such auditors or independent accountants.
(e) All information provided by the Company or Parent or their respective Representatives shall be held in confidence in accordance with the Confidentiality Agreement.
(f) No exchange of information or investigation by DISH Parent or EchoStar or any of their respective its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar the Company set forth in this Agreement. No exchange of information or DISHinvestigation by the Company or its Representatives shall affect or be deemed to affect, respectively, modify or waive the representations and warranties of Parent set forth in this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Superior Drilling Products, Inc.), Merger Agreement (Drilling Tools International Corp)
Access. (a) Upon reasonable noticeSubject to compliance with applicable Laws, each of DISH and EchoStar shall, the Company shall and shall cause each of their respective its Subsidiaries to, to afford to Parent and to its officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives (collectively, “Representatives”) reasonable access, solely to the other party extent in furtherance of the consummation of the Mergers and the other party’s Representatives reasonable accesstransactions contemplated hereby or integration planning relating thereto, during normal business hours upon prior notice hours, on reasonable advance notice, throughout the period prior to the earlier of the First Effective TimeTime and the Termination Date, to their respective personnelthe Company’s and its Subsidiaries’ businesses, properties, Contractspersonnel, filings with Governmental Entities and agents, contracts, commitments, books and records andrecords, and during such period, each the Company and Parent shall, and shall cause their respective Subsidiaries to, (I) in the case of DISH and EchoStar shall Parent, furnish promptly to the other party all available Company information concerning its business the Mergers as DISH or EchoStarmay be reasonably requested by Company, as and (II) in the case may beof the Company, furnish promptly to Parent all information concerning the Mergers as 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 Measurerequested by Parent; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives no investigation pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives 5.3 shall affect or be deemed to affectmodify any representation or warranty made by the Company or Parent.
(b) The foregoing provisions of this Section 5.3 notwithstanding, modify neither the Company nor Parent shall be required to afford such access or waive furnish such information if it would unreasonably disrupt the representations 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 party or any of its Subsidiaries, would result in the disclosure of any information in connection with any 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 risk of liability or competitively sensitive information. In the event that Parent or the Company objects to any request submitted pursuant to and warranties in accordance with this Section 5.3 and withholds information on the basis of EchoStar the foregoing sentence, the Company or DISHParent, respectivelyas applicable, shall inform the other party as to the general nature of what is being withheld and the Company and Parent shall use reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not suffer from any of the foregoing impediments, including through the use of reasonable best efforts to (i) obtain the required consent or waiver of any third party required to provide such information and (ii) implement appropriate and mutually agreeable measures to permit the disclosure of such information in a manner to remove the basis for the objection, including by arrangement of appropriate clean room procedures (including as set forth in the Clean Team Agreement), if the parties determine that doing so would reasonably permit the disclosure of such information without violating applicable Law or 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 Agreement and the consummation of the transactions contemplated hereby shall be deemed to be “Confidential Information,” as such term is used in, and 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. (a) Upon reasonable notice, each of DISH and EchoStar 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 During the period prior commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall (and shall cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable notice, to their respective personnel, the properties, Contracts, filings with Governmental Entities and books and records and personnel of the Company and its Subsidiaries and, during such period, each of DISH the Company shall (and EchoStar shall cause its Subsidiaries to) furnish reasonably promptly to the other party Parent all available information (financial or otherwise) concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, Parent may reasonably request, including with respect to the Company Programs; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, information to the extent that (a) any applicable Law requires the Company or its Subsidiaries to disclose any restrict or otherwise prohibit access to such documents or 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that Company reasonably determines access to such documents or information would result in a waiver of any of the information or material furnished pursuant to this Agreement may include material subject to the 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 applicable to such protection under these privileges, this Agreement and the joint defense doctrine.
documents or information or (c) No exchange such documents or information relate to the evaluation or negotiation of this Agreement, the Transactions or, subject to Section 5.2 and Section 5.3, an Acquisition Proposal or Superior Proposal. In the event that the Company does not provide access or information in reliance on clauses (a) or (b) of the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate any applicable Law or waive such a privilege. Any investigation conducted pursuant to the access contemplated by DISH this Section 6.5 (i) shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company or EchoStar its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of their respective its Subsidiaries and (ii) shall be subject to 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 or any of its Representatives shall affect or be deemed in connection with any investigation conducted pursuant to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in access contemplated by this AgreementSection 6.5.
Appears in 2 contracts
Sources: Merger Agreement (Ambrx Biopharma, Inc.), Merger Agreement (Ambrx Biopharma, Inc.)
Access. (a) Upon reasonable noticeSubject to compliance with applicable Laws, each of DISH and EchoStar shall, (i) the Company shall (and shall cause each of their respective its Subsidiaries to) afford Parent and its Representatives reasonable access to, afford to in connection with furthering the other party Transactions and the other party’s Representatives transactions contemplated hereby or integration planning relating thereto, on reasonable accessadvance notice, during normal business hours upon prior notice throughout the period prior to the earlier of the First Parent Merger Effective TimeTime and the Termination Date, to their respective personnelthe Company’s and its Subsidiaries’ businesses, properties, Representatives, Contracts, filings with Governmental Entities and commitments, books and records andrecords; provided that, during such periodnotwithstanding the foregoing, Parent shall not have any right to perform sampling or testing of the environment or building materials at any property of the Company and (ii) each of DISH the Company and EchoStar Parent shall (and each shall cause its Subsidiaries to) reasonably promptly furnish promptly to the other Party and its Representatives and the Debt Financing Sources (A) all information concerning itself, its Subsidiaries and its and their directors (or equivalents), officers and stockholders/shareholders and such other matters as may be reasonably necessary or advisable in connection with the Proxy Statement/Prospectus, the Form F-4, any filings contemplated pursuant to Section 5.5, the Debt Financing or any other statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in connection with the Transactions or any other transactions contemplated by this Agreement or in connection with integration planning and (B) all available other information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably request; providedbe requested by the other Party.
(b) Notwithstanding the foregoing provisions of this Section 5.3, however, that each party neither the Company nor Parent shall not be required to permit afford such access or furnish such information if it would unreasonably disrupt the operations of such Party or any inspection of its Subsidiaries, would cause a material violation of any agreement to which such Party or other accessany of its Subsidiaries is a party, would result in a loss of privilege or Trade Secret protection to disclose such Party or any informationof its Subsidiaries, that would result in the reasonable judgment disclosure of any information in connection with any litigation or similar dispute between the Parties would constitute a violation of any applicable Law or result in the disclosure of any Personal Information that would expose such party would: (i) violate Party to the risk of any obligation material liability. In the event that Parent or the Company objects to any request submitted pursuant to and in accordance with this Section 5.3 and withholds information on the basis of such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilegeforegoing sentence, the attorney work product doctrine Company or any other applicable privilege; or (iii) violate any Legal RequirementParent, including any Covid-19 Measure; provided that in each case of clauses (i)as applicable, (ii) and (iii) such party shall inform the other party Party as to the general nature of what is being withheld and each of the nature of the information being withheld, Company and Parent shall use its respective reasonable best efforts to make alternative appropriate substitute arrangements with respect to such information. Each party shall use commercially permit reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent disclosure that does not suffer from any of the foregoing impediments, including through the use of its respective reasonable best efforts to (i) obtain the required consent or waiver of any third party required to provide such information or material furnished pursuant and (ii) implement appropriate and mutually agreeable measures to this Agreement may include material subject to permit the 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 disclosure of such material is not intended toinformation in a manner to remove the basis for the objection, and shall notincluding by arrangement of appropriate clean room procedures (including as set forth in the Clean Team Agreement), waive or diminish in any way if the confidentiality Parties determine that doing so would reasonably permit the disclosure of such material information without violating applicable Law or its continued protection under the attorney-client jeopardizing such 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) No exchange The Company shall use reasonable best efforts to provide to Parent as soon as reasonably practicable (i) a list of information all material Company Permits and (ii) a general description of the principal functions conducted at each parcel of such Company Leased Real Property and Company Owned Real Property.
(d) As promptly as practicable following the date of this Agreement, the Company will provide a true, correct and complete listing of all outstanding Company Equity Awards as of the Company Capitalization Date, setting forth the number of shares of Company Common Stock subject to each Company Equity Award and the holder, grant date, vesting schedule and exercise price with respect to each Company Equity Award, as applicable. Prior to the Closing, the Company shall update such listing to include, for each Company RSU which is outstanding under a Company Deferral Plan: (i) the applicable Company Deferral Plan under which such Company RSU has been deferred, (ii) whether such Company RSU is a Deferred Company RSU or investigation a Stock Equivalent Company RSU and (iii) the settlement date of such Company RSU.
(e) In addition to the obligations contemplated by DISH or EchoStar this Section 5.3, Section 5.5, Section 5.7, Section 5.11, Section 5.12 or any other obligation of their respective Representatives the Company to provide access to any information as contemplated by this Agreement, the Company shall affect or be deemed to affect, modify or waive provide Parent the representations and warranties of EchoStar or DISH, respectively, materials set forth in this AgreementSection 5.3(e) of the Company Disclosure Schedules until the earlier of the Closing Date and the Termination Date.
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)
Access. (a) Upon reasonable advance written notice, each of DISH and EchoStar shall, the Company shall (and shall cause each of their respective its Subsidiaries to, ) afford to the other party and the other partyParent’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnelthe Acquired Companies’ officers, employees, agents, properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH and EchoStar the Company shall furnish promptly to the Parent all other party all available information within its possession or control concerning its business as DISH or EchoStar, as the case may be, Parent may reasonably requestrequest in writing, in each case, for any reasonable business purpose related to the consummation of or integration planning with respect to the Transactions; provided, however, that each party shall not be required the Acquired Companies may restrict or prohibit such access to permit any inspection or other accessthe extent that granting such access would, or to disclose any information, that in the reasonable judgment of such party wouldthe Company: (ia) result in the disclosure of any Trade Secrets of Third Parties; (b) violate any material obligation of such party the Acquired Companies with respect to confidentiality confidentiality, non-disclosure or privacy; (iic) jeopardize protections afforded such party reasonably be expected to result in a waiver by the Company under the attorney-client privilege, the privilege or attorney work product doctrine doctrine; (d) violate any Contract or any other applicable privilegeLaw (it being agreed that, with respect to clauses (a), (b), (c) or (d), that the Company shall its commercially reasonable efforts to cause such information to be provided in a manner that would not result in such jeopardy, contravention or violation); or (iiie) violate materially interfere with the conduct of any Legal RequirementAcquired Company’s business. Without limitation of the foregoing, including any Covid-19 Measurethe Acquired Companies will reasonably cooperate with Parent and its Representatives for purposes of integration planning; provided provided, that in each case no event shall any implementation of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements integration planning steps with respect to the Acquired Companies occur prior to the Effective Time. No investigation pursuant to this Section 5.5 shall affect or be deemed to modify any representation or warranty in this Agreement of any Party. All requests for access pursuant to this Section 5.5 must be directed to the Chief Executive Officer of the Company or another Person designated in writing by the Company. Without limiting Parent’s obligations under the Confidentiality Agreement, Parent shall instruct its directors, officers and employees not to, directly or indirectly, contact any Person known by such information. Each party shall use commercially reasonable security measures director, officer or employee to access be a customer or supplier of the systems and information Company in connection with the Merger or any of the other partyTransactions without the Company’s prior written consent, not to be unreasonably withheld, conditioned or delayed (provided, that such consent, with respect to any particular such customer or supplier, need only be obtained once with respect to all contacts with such party for the same purpose). All confidential Prior to the Effective Time, all information obtained by each party Parent and its Representatives pursuant to this Section 4.8(a) 5.5 shall be subject to the Confidentiality Agreement so long treated as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished Acquired Companies for purposes of the Confidentiality Agreement. Effective as of the Original Agreement Date, the use and disclosure restrictions contained in the Confidentiality Agreement shall be extended until either (i) one year following the date on which this Agreement is terminated pursuant to this Agreement may include material subject to Section 7.1 or (ii) the 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 the joint defense doctrineEffective Time.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Hill International, Inc.), Agreement and Plan of Merger (Hill International, Inc.)
Access. (a) Upon reasonable prior notice, each of DISH the Company shall afford Parent and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s its Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective the Company’s and its Subsidiaries personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar the Company shall furnish promptly to the other party Parent all available information concerning its business as DISH or EchoStar, as the case may be, Parent may reasonably request; provided, however, that each party 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 such party the Company would: (i) violate any obligation of such party the Company with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party the Company under the attorney-client privilege, the attorney work product doctrine or any other applicable privilegesimilar legal privilege or protection; or (iii) violate any Legal Requirement; or (iv) result in the disclosure of any trade secrets of any third parties, including competitively sensitive information, information concerning the valuation of the Company or any Covid-19 Measureof its Subsidiaries or personal information that would expose the Company to the risk of liability; provided that in each case of clauses (i), (ii) and (iii) such party the Company shall inform the other party Parent of the nature of the information being withheld, and shall use its commercially reasonable best efforts to make alternative arrangements with respect that would allow Parent (or its applicable Representative) access to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party or provided to Parent and its Representatives pursuant to this Section 4.8(a) Agreement shall be subject to treated as “Confidential Information” of the Confidentiality Agreement so long as it satisfies Company for purposes of the definition of “Evaluation Material” contained thereinNon-Disclosure Agreement.
(b) Upon reasonable prior notice, Parent shall afford the Company and its Representatives reasonable access, during normal business hours throughout the period prior to the Effective Time, to Parent’s and its Subsidiaries personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, Parent shall furnish promptly to the Company all available information concerning its business as the Company may reasonably request; provided, however, that Parent shall not be required to permit any inspection or provide other access, or to disclose any information, that in the reasonable judgment of Parent would: (i) violate any obligation of Parent with respect to confidentiality or privacy; (ii) jeopardize protections afforded Parent under the attorney-client privilege, the attorney work product doctrine or similar legal privilege or protection; (iii) violate any Legal Requirement; or (iv) result in the disclosure of any trade secrets of any third parties, competitively sensitive information, information concerning the valuation of Parent or any of its Subsidiaries or personal information that would expose Parent to the risk of liability; provided that in each case Parent shall inform the Company of the nature of the information being withheld, and shall use its commercially reasonable best efforts to make alternative arrangements that would allow the Company (or its Representatives) access to such information. All information obtained by or provided to the Company and its Representatives pursuant to this Agreement shall be treated as “Confidential Information” of Parent for purposes of the Non-Disclosure Agreement.
(c) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 Agreement, and under the joint defense doctrine.
(cd) No exchange of information or investigation by DISH Parent or EchoStar or any of their respective its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar the Company set forth in this Agreement. No exchange of information or DISHinvestigation by the Company or its Representatives shall affect or be deemed to affect, respectively, modify or waive the representations and warranties of Parent set forth in this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Xilinx Inc), Merger Agreement (Advanced Micro Devices Inc)
Access. (a) Upon reasonable notice5.2.1 Subject to applicable Law, each of DISH BHW and EchoStar shall, and BHIL shall cause each of their respective Subsidiaries to, afford to INFO and its 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 party and representatives (the other party’s Representatives reasonable access, "BHW Representatives") full access during normal business hours upon prior with reasonable notice throughout the period prior to the Effective Time, Closing Date to all of their respective personnel, properties, Contractsbooks, filings with Governmental Entities and books contracts, commitments and records and, during such period, each of DISH and EchoStar shall furnish promptly to one another:
(a) a copy of each report, schedule and other document filed with or received by any of them from the SEC in connection with the transactions contemplated by this Master Transaction Agreement, and
(b) such other party all available information concerning its business their respective businesses, properties and personnel as DISH INFO, BHIL or EchoStarBHW, as the case may be, may shall reasonably request, including all information necessary for either party to make any required filings with the SEC; provided, however, that each party no investigation pursuant to this Section 5.2 shall not be required to permit amend or modify any inspection representations or other access, warranties made herein or to disclose any information, that in the reasonable judgment of such party would: (i) violate any obligation of such party with respect Related Agreements or the conditions 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 (iii) such party shall inform the other party obligations of the nature of respective parties to consummate the information being withheld, transactions contemplated hereby and thereby.
5.2.2 INFO shall hold and shall use its reasonable best commercial efforts to make alternative arrangements with respect cause the INFO Representatives to such information. Each party hold, and BHW and BHIL shall hold and shall use commercially its reasonable security measures commercial efforts to access the systems 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 has been obtained from a third party without a breach of such third party. All confidential information obtained by '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 and its Representatives shall promptly redeliver to the other all non-public written material provided pursuant to this Section 4.8(a5.2 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 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 subject to the Confidentiality Agreement so long as it satisfies the definition certified in writing by an authorized officer supervising such destruction. The provisions of “Evaluation Material” contained therein.
(b) To the extent that Subsections 5.2.2, 5.2.3 and 5.2.4 shall survive any termination of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Master Transaction Agreement.
Appears in 2 contracts
Sources: Master Transaction Agreement (Infonautics Inc), Master Transaction Agreement (Infonautics Inc)
Access. (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, At all times during normal business hours upon prior notice throughout the period prior commencing with the execution and delivery of this Agreement and continuing until the earlier to occur of (x) the termination of this Agreement pursuant to Article VIII and (y) the Effective Time, the Company shall afford Parent and its accountants, legal counsel and other representatives full and complete access during normal business hours, upon reasonable notice, to their respective personnelthe assets (including the Company IP, design processes and source code), properties (including the right to conduct an environmental site assessment and audit of the properties), books and records and personnel of the Company to enable Parent to obtain all information concerning the business, including the status of product development efforts, properties, Contracts, filings with Governmental Entities results of operations and books and records and, during such period, each personnel of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStarCompany, as the case Parent may be, may reasonably request; provided, however, that each party shall not be required to permit any inspection no information 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information knowledge obtained by each party and its Representatives Parent in any investigation conducted pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives 6.6 shall affect or be deemed to affectmodify any representation or warranty of the Company set forth herein or the conditions to the obligations of Parent and Merger Sub to consummate the transactions contemplated hereby, modify including the Merger, or waive the remedies available to the parties hereunder; and provided further, that the terms and conditions of the Confidentiality Agreement (as amended pursuant to Section 6.9) shall apply to any information provided to Parent pursuant to this Section 6.6.
(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 of its Subsidiaries and of reviewing the Company’s books and records regarding such properties from time to time as needed to make any inspections, evaluations, surveys or tests which Parent may deem necessary or appropriate. Parent’s exercise of its right to inspect such properties, or Parent’s election not to inspect any property, shall in no way be interpreted as a waiver of any of Parent’s rights or remedies contained in this Agreement, including, without limitation, Parent’s right to rely upon the Company’s representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
(c) Parent and the Company agree to mutually cooperate in testing the Company’s IT systems for compatibility and interoperability with Parent’s IT systems and in other like matters as reasonably requested by Parent prior to Closing. In particular, but without limitation, from and after the date of the satisfaction of the condition set forth in Section 7.1(b), the Company shall provide to Parent the information described on Schedule 6.6(c) for purposes of allowing Parent to test its internal business systems ability to accept and process Company data.
Appears in 2 contracts
Sources: Merger Agreement (Microchip Technology Inc), Merger Agreement (Supertex Inc)
Access. (a) Upon From the date of this Agreement until the Effective Time, the Company shall:
(i) upon reasonable prior notice, each of DISH give Parent and EchoStar shallPurchaser, their officers and shall cause each a reasonable number of their respective Subsidiaries toemployees and their authorized representatives, afford to the other party and the other party’s Representatives reasonable access, access during normal business hours upon prior notice throughout and as coordinated through the period prior Company’s Chief Financial Officer to the Effective Time, to their respective personnel, Company’s properties, Contractscontracts, filings with Governmental Entities and commitments, books and records and, during records;
(ii) furnish Parent and Purchaser on a timely basis with such period, each of DISH financial and EchoStar shall furnish promptly to the operating data and other party all available information concerning its business as DISH or EchoStar, 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 privilegebusiness, 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) properties and (iii) such party shall inform the other party Company Agreements of the nature of the information being withheld, Company as Parent and shall Purchaser may from time to time reasonably request and use its reasonable best efforts to make alternative arrangements with respect available at all reasonable times during normal business hours to such information. Each party shall use commercially reasonable security measures to access the systems officers, employees, accountants, counsel, financing sources and information other representatives of Parent and Purchaser the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company’s business, properties, prospects and personnel as Parent or Purchaser may reasonably request. In addition, the Company shall furnish promptly to Parent: (x) a copy of each material report, schedule, statement and other party. All confidential information obtained document submitted or filed by each party it with any Governmental Entity; and its Representatives pursuant to this Section 4.8(a(y) shall be subject the internal or external reports prepared by it in the ordinary course that are reasonably required by Parent promptly after such reports are made available to the Confidentiality Agreement so long Company’s personnel;
(iii) no later than 20 days following the end of each calendar month, provide Parent the unaudited consolidated balance sheet of the Company as it satisfies of the definition end of “Evaluation Material” contained thereinthe most recently completed calendar month and the related unaudited consolidated statements of income for the period from beginning of the Company’s then current fiscal year until then end of such month; and
(iv) within two Business Days of any request therefor, provide to Parent the information described in Rule 14a-7(a)(2)(ii) under the Exchange Act and any information to which a holder of Common Stock would be entitled under Section 220 of the DGCL (assuming such holder met the requirements of such section).
(b) To the extent that any of the No investigation heretofore conducted or conducted, or knowledge or information or material furnished obtained, pursuant to this Agreement may include material subject Section 6.2 or otherwise shall affect any representation or warranty made by the parties hereunder or any conditions to the attorney-client privilege, work product doctrine obligations of the parties hereunder or any other applicable privilege, the parties understand condition or requirement set forth in Annex I.
(c) Parent and Purchaser hereby agree that they have a commonality of interest with respect all information provided 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, Representatives in connection with this Agreement and the joint defense doctrine.
(c) No exchange consummation of information or investigation by DISH or EchoStar or any of their respective Representatives the transactions contemplated hereby shall affect or be deemed to affectbe “Evaluation Information”, modify or waive as such term is used in, and shall be treated in accordance with, the representations confidentiality agreement, dated as of October 23, 2007, between the Company and warranties of EchoStar or DISH, respectively, set forth in this Parent (the “Confidentiality Agreement”).
Appears in 2 contracts
Sources: Merger Agreement (Teradyne, Inc), Merger Agreement (Nextest Systems Corp)
Access. (a) Upon Subject to compliance with applicable Laws, the Company shall (i) provide to Parent and to its officers, employees, accountants, consultants, legal counsel, financial advisors and agents, lenders and other representatives (collectively, “Parent Representatives”) reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, access during normal business hours upon prior notice hours, throughout the period prior to the earlier of the Effective TimeTime and the Termination Date, to their respective personnel, the Company’s and its Subsidiaries’ properties, Contractscontracts, filings with Governmental Entities and commitments, books and records and, during and (ii) furnish to Parent and its Parent Representatives such period, each of DISH financial and EchoStar shall furnish promptly to the operating data and other party all available information concerning its business as DISH or EchoStar, as the case may be, such Parent Representatives may reasonably request; providedrequest (including, howeverbut not limited to, that each party furnishing to Parent the financial results of the Company in advance of any filing by the Company with the SEC containing such financial results) and (iii) instruct the employees, counsel, financial advisors, auditors and other authorized representatives (other than directors who are not employees) of the Company and its Subsidiaries to cooperate reasonably with Parent in its investigation of the Company and its Subsidiaries. The foregoing notwithstanding, the Company shall not be required to permit afford such access if it would unreasonably disrupt the operations of the Company or any inspection of its Subsidiaries, would cause a violation of any agreement to which the Company or other accessany of its Subsidiaries is a party, would cause a risk of a loss of privilege or trade secret protection to disclose the Company or any informationof its Subsidiaries or would constitute a violation of any applicable Law, that in the reasonable judgment nor shall Parent or any of such party would: (i) violate its Parent Representatives be permitted to perform any obligation of such party onsite procedure with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under any property of the attorney-client privilege, the attorney work product doctrine Company 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinSubsidiaries.
(b) To the extent Parent hereby agrees that any of the all information or material furnished pursuant provided to this Agreement may include material subject to the 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, Parent Representatives in connection with this Agreement and the joint defense doctrine.
(c) No exchange consummation of information or investigation by DISH or EchoStar or any of their respective Representatives the transactions contemplated hereby shall affect or be deemed to affectbe Evaluation Material, modify as such term is used in, and shall be treated in accordance with, the amended and restated confidentiality agreement, dated as of October 11, 2006, between the Company, Parent and Merger Sub (the “Confidentiality Agreement”); provided, that Parent shall be entitled to share such Evaluation Material with prospective co-investors or waive limited partners of the representations members of Parent and warranties Merger Sub; provided further, however, that any prospective co-investors or limited partners of EchoStar the shareholders of Parent to whom Parent provides Evaluation Material shall, prior to receiving such Evaluation Material, agree in writing to be bound by the confidentiality provisions of the Confidentiality Agreement or DISH, respectively, set forth shall execute their own confidentiality agreements in this Agreementidentical or substantially identical form with the Company.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)
Access. (a) Upon reasonable noticeDuring the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article X and the Effective Time, each of DISH and EchoStar the Company shall, and shall cause each of their respective its Subsidiaries to, afford to the other party Parent and the other party’s its Representatives reasonable access, access during normal business hours hours, upon prior notice throughout the period prior reasonable notice, to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each and personnel of DISH the Company and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestSubsidiaries; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, or information to disclose any information, the extent that in the reasonable judgment of such party would: (i) violate any obligation of applicable Law requires the Company or its Subsidiaries to restrict or otherwise prohibit access to such party with respect to confidentiality documents 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)information, (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect access to such information. Each party shall use commercially reasonable security measures documents or information would reasonably be expected to access the systems and information result in a waiver of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilegeprivilege applicable to such documents or information or (iii) such documents or information relate to the evaluation or negotiation of this Agreement, the parties understand and agree that they have a commonality of interest with respect transactions contemplated hereby or, subject to such matters and it is their desireSection 7.2, intention and mutual understanding an Acquisition Proposal or Superior Proposal. In the event that the sharing Company does not provide access or information in reliance on clauses (i) or (ii) of the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate any applicable Law or waive such material is a privilege. Any investigation conducted pursuant to the access contemplated by this Section 8.5 shall be conducted in a manner that does not intended tounreasonably interfere with the conduct of the business of the Company or its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or its Subsidiaries, shall be subject to the Company’s and its Subsidiaries’ reasonable security measures and insurance requirements, and shall notnot include the right to perform invasive testing without the Company’s prior written consent, waive or diminish in its sole discretion. The terms and conditions of the Confidentiality Agreement shall apply to 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) No exchange of information or investigation obtained by DISH or EchoStar Parent or any of their respective its Representatives shall affect or be deemed in connection with any investigation conducted pursuant to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth access contemplated by this Section 8.5. Nothing in this AgreementSection 8.5 or elsewhere in this Agreement shall be construed to 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 its business.
Appears in 2 contracts
Sources: Transaction Agreement (Verona Pharma PLC), Transaction Agreement (Verona Pharma PLC)
Access. (a) Upon Subject to applicable Law, upon reasonable notice, the Company and Parent each of DISH and EchoStar shall, shall (and shall cause each of their respective its Subsidiaries to, ) afford to the other party and the other partyother’s Representatives (including, for this purpose, environmental consultants) reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably request; be requested, provided that no investigation pursuant to this Section 6.6 shall affect or be deemed to modify any representation or warranty made by the Company, Parent or Merger Sub, and provided, howeverfurther, that each party the foregoing shall not be required require the Company or Parent (i) to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) the Company or Parent, as the case may be, would result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality if the Company or privacy; Parent, as the case may be, shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure or (ii) jeopardize protections afforded such party under the attorney-client privilege, the attorney work product doctrine or to disclose 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and privileged information of the other partyCompany or Parent, as the case may be, or any of its Subsidiaries. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 6.6 shall be subject directed to an executive officer of the Company or Parent, as the case may be, or such Person as may be designated by either of their executive officers, as the case may be. All such information shall be governed by the terms of the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinAgreement.
(b) To Without limiting the generality of Sections 6.5(a) and 6.6(a), the Company shall, and shall cause its Subsidiaries and its and their respective Representatives to, use their reasonable best efforts to cooperate on a timely basis with Parent’s and Merger Sub’s efforts to obtain funding for the Transactions (and facilitating the syndication thereof) by way of (i) participating in due diligence sessions; (ii) assisting Parent, Merger Sub and its financing sources in preparing bank information memoranda and similar documents (including historical and pro-forma financial statements and information to the extent that reasonably requested by Merger Sub); (iii) recording documents and executing and delivering financing documents (or ensuring the execution and delivery thereof) and other requested certificates or documents, including a certificate of the chief financial officer of the Company or any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have a commonality of interest its Subsidiaries with respect to such matters and it is solvency matters, comfort letters of accountants, consents of accountants for use of their desire, intention and mutual understanding that the sharing of such material is not intended to, and shall not, waive or diminish reports 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 materials relating to such protection under these privilegesfunding, this Agreement legal opinions, surveys and title insurance; (iv) providing reasonable direct contact between Parent’s and Merger Sub’s lenders involved in the funding process and their counsel and advisors (collectively, the “Funding Arrangers”) and the joint defense doctrine.
officers and directors of the Company and its Subsidiaries; and (cv) No exchange permitting the Funding Arrangers to evaluate the Company’s and each of information or its Subsidiaries’ current assets, cash management and accounting systems, policies and procedures relating thereto for the purposes of establishing collateral arrangements and establishing bank and other accounts and blocked account agreements and lock box arrangements in connection with the foregoing and to conduct a due diligence investigation by DISH or EchoStar of the Company and its Subsidiaries in connection with any bank financing, including access to outside accountants and key customers and key suppliers); provided that (1) such requested cooperation does not materially and adversely interfere with the ongoing operations of the Company or any of its Subsidiaries and (2) none of the Company or any of its Subsidiaries shall be required to pay any commitment or other similar fee or incur any other expense in connection with their respective Representatives shall affect or be deemed cooperation in the funding process prior to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this AgreementEffective Time.
Appears in 2 contracts
Sources: Merger Agreement (Lowrance Electronics Inc), Merger Agreement (Simrad Yachting As)
Access. Between the date of this Agreement and Closing, upon at least two (a2) Upon reasonable noticedays’ prior notice to the Company, each of DISH and EchoStar the Company shall, and shall cause each of Group Company and its Subsidiaries and their respective Subsidiaries to, Representatives to (a) afford to the other party Representatives of Aegis and the other party’s Representatives reasonable accessits Affiliates designated by Aegis, during normal business hours upon prior notice throughout the period prior hours, reasonable access at reasonable times to the Effective Timeits officers, to their respective personnelEmployees, auditors, legal counsel, properties, Contractsoffices, filings with Governmental Entities plants and other facilities and to all books and records andrecords, during (b) furnish Aegis and such periodAffiliates with all financial, each operating and other data and information as Aegis or such Affiliate, through their respective Representative, may from time to time reasonably request, and (c) afford Aegis and such Affiliate the opportunity to discuss the affairs, finances and accounts of DISH the Company and EchoStar shall furnish promptly its Subsidiaries with the officers of the Company and its Subsidiaries from time to the other party all available information concerning its business time as DISH Aegis or EchoStar, as the case may be, such Affiliate may reasonably request; provided, howeverand to make proposals, that each party shall not be required recommendations and suggestions to permit any inspection the Company or other access, its Subsidiaries relating to the business and affairs of the Company 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 Measureits Subsidiaries; provided that in each case the Board of clauses (i), (ii) and (iii) such party shall inform the other party Directors of the nature of Company shall have the information being withheldsole discretion to decide on such proposals, recommendations and suggestions after considering them in good faith. Any costs incurred by Aegis in connection with the foregoing shall use its reasonable best efforts to make alternative arrangements with respect to such informationbe borne by Aegis. Each party Notwithstanding the foregoing provisions, neither the Company nor any other Group Company shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives be obligated pursuant to this Section 4.8(a) shall be subject 5.2 to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that provide access to any of its information which would be the subject of any confidentiality obligations owed to third parties and any information or material furnished pursuant which the Company can demonstrate is confidential to this Agreement may include material subject its business operations and which would be detrimental to its competitive position in the attorney-client privilegemarketplace if disclosed including without limitation media buying rates, work product doctrine or any other applicable privilegerebate structure, media and customer contract details and the CCTV auction pricing mechanisms. For the avoidance of doubt, 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 Company shall 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 be 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 doctrinewithhold information from Chaview.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 2 contracts
Sources: Share Subscription Agreement (Charm Communications Inc.), Share Subscription Agreement (Charm Communications Inc.)
Access. (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, The Contributors will afford to the Partnership and its counsel, financial advisors, auditors and other party authorized representatives (“Representatives”) reasonable access to the Contributors’ and the Companies’ financial, title, tax, corporate and legal materials and operating data and information available as of the date hereof and which becomes available to the Contributors at any time prior to the Closing Date, and will furnish to the Partnership such other party’s information as it may reasonably request, unless any such access and disclosure would violate the terms of any agreement to which the Contributors and the Companies are bound or any applicable law or regulation, or jeopardize the availability of any privilege. The Contributors will use their reasonable best efforts to secure all requisite consents for the examination by the Partnership and their Representatives of all information covered by confidentiality agreements and will promptly communicate to the Partnership or its Representatives the substance of any such information, whether by redacting parts thereof or otherwise, so that disclosure would not violate any such confidentiality agreement or cause the loss of the privilege with respect thereto, and otherwise shall make all reasonable and appropriate substitute disclosure arrangements. The Contributors will cause the Companies to allow the Partnership access to and consultation with the lawyers, accountants, and other professionals employed by or used by the Companies for all purposes under this Agreement. Any such consultation shall occur under circumstances appropriate to maintain intact the attorney-client privilege as to privileged communications and attorney work product. Additionally, the Contributors will afford to the Partnership and its Representatives reasonable accessaccess to the books and records of the Contributors insofar as they relate to property, accounting and tax matters of the Companies. Until the Closing Date, the confidentiality of any data or information so acquired shall be maintained by the Partnership and its Representatives. Further, the Contributors will afford to the Partnership and its Representatives reasonable access from the date hereof until the Closing Date, during normal business hours upon prior notice throughout the period prior hours, to the Effective Time, to their respective personnel, Companies’ assets and properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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)such access shall be at the sole cost, (ii) expense and (iii) such party shall inform the other party risk of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinPartnership.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 2 contracts
Sources: Contribution Agreement, Contribution Agreement (El Paso Pipeline Partners, L.P.)
Access. (a) Upon reasonable notice, each of DISH and EchoStar Buyer shall, and shall cause each of their respective its Subsidiaries to, afford make its financial records, accounting personnel and advisors available to the Seller, its accountants and other party representatives and the other party’s Representatives Accounting Firm at reasonable access, times during normal business hours upon prior notice throughout during the period prior review by Seller and the Accounting Firm of, and the resolution of any Objections with respect to, the Closing Statement or the Shortfall Statement. Without limiting the generality of the foregoing, Parent, Seller and their representatives will be permitted to review Buyer’s work papers and the work papers of Buyer’s independent accountants relating to the Effective Timepreparation of the Closing Statement or the Shortfall Statement, to their respective personnelas applicable, propertiesas well as all the books, Contracts, filings with Governmental Entities records and books and records and, during such period, each of DISH and EchoStar shall furnish promptly other relevant information relating to the other party all operations and finances of the Group Companies, and Buyer will make available at reasonable times during normal business hours the individuals then in its employ responsible for and knowledgeable about the information concerning its business as DISH used in, and the preparation of, the Closing Statement or EchoStarthe Shortfall Statement, as applicable, in order to respond to the case may be, may reasonably requestreasonable inquiries of Parent and Seller; provided, however, that each party shall the independent accountants of Buyer will not be required obligated to permit make any inspection work papers available to Parent or other accessSeller unless and until such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants. Buyer agrees that, or to disclose following the Closing through the date that the Closing Statement and the Shortfall Statement become final and binding, it will not take any information, that in the reasonable judgment of such party would: (i) violate any obligation of such party actions with respect to confidentiality any accounting, books, records, policies or privacy; (ii) jeopardize protections afforded such party under procedures on which the attorney-client privilege, Closing Statement or 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinShortfall Statement is based.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable noticeSubject to applicable Laws, each during the period from the date of DISH and EchoStar this Agreement to the Closing, CareOregon shall, and shall cause each of their respective Subsidiaries the CareOregon Companies to, afford to the other party and the other party’s Representatives CareOregon Companies shall, authorize and permit SCAN Group and its representatives (which term shall be deemed to include its independent accountants and counsel) to have reasonable access, during normal business hours hours, upon prior reasonable advance notice throughout and in such manner as will not unreasonably interfere with the period prior conduct of the CareOregon Business, to (i) the facilities and assets of CareOregon and the CareOregon Companies, (b) the properties, books and records relating to the Effective TimeCareOregon Business, and (c) the officers of CareOregon and the CareOregon Companies, in each case to their respective personnelthe extent necessary or appropriate for the purposes of obtaining any necessary Approvals of or Permits for the transactions contemplated by this Agreement and familiarizing SCAN Group with developments relating to the CareOregon Business arising after the date hereof. All requests for access to such facilities, assets, properties, Contractsbooks, filings with Governmental Entities records, officers and books and records and, during such period, each of DISH and EchoStar other information shall furnish promptly be made to the other party all available information concerning its business as DISH or EchoStarrepresentatives who CareOregon shall designate, as the case may be, may reasonably request; provided, however, that each party who 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 (iii) such party shall inform the other party of the nature of the information being withheld, solely responsible for coordinating and shall use coordinate all such requests and all access permitted hereunder. Any information provided to SCAN Group or its reasonable best efforts to make alternative arrangements representatives in accordance with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a7.1(a) shall be subject to the terms of the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinAgreement.
(b) To From and after the extent that any date of the information or material furnished pursuant this Agreement, CareOregon shall continue to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand keep 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 topreserve, and shall notcause the CareOregon Companies to keep and preserve, waive any books and records relating to the CareOregon Business which it or diminish the applicable CareOregon Company maintained prior to the date hereof, including payroll and accounts payable records, whether electronic or in any way the confidentiality of such material or its continued protection under the attorney-client privilegeother form, work product doctrine or any other in accordance with 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 Law and the joint defense doctrinerecord retention policy of CareOregon and the CareOregon Companies, a copy of which has been provided to SCAN Group.
(c) No exchange Subject to applicable Laws, during the period from the date of information or investigation by DISH or EchoStar or any of their respective Representatives this Agreement to the Closing, SCAN Group shall, and shall affect or cause the SCAN Companies to, and the SCAN Companies shall, authorize and permit CareOregon and its representatives (which term shall be deemed to affectinclude its independent accountants and counsel) to have reasonable access, modify during normal business hours, upon reasonable advance notice and in such manner as will not unreasonably interfere with the conduct of the SCAN Business, to (i) the facilities and assets of SCAN Group and the SCAN Companies, (b) the properties, books and records relating to the SCAN Business, and (c) the officers of SCAN Group and the SCAN Companies, in each case to the extent necessary or waive appropriate for the representations purposes of obtaining any necessary Approvals of or Permits for the transactions contemplated by this Agreement and warranties familiarizing CareOregon with developments relating to the SCAN Business arising after the date hereof. All requests for access to such facilities, assets, properties, books, records, officers and other information shall be made to the representatives who SCAN Group shall designate, who shall be solely responsible for coordinating and shall coordinate all such requests and all access permitted hereunder. Any information provided to CareOregon or its representatives in accordance with this Section 7.1(c) shall be subject to the terms of EchoStar or DISH, respectively, set forth in the Confidentiality Agreement.
(d) From and after the date of this Agreement, SCAN Group shall continue to keep and preserve, and shall cause the SCAN Companies to keep and preserve, any books and records relating to the SCAN Business which it or the applicable SCAN Company maintained prior to the date hereof, including payroll and accounts payable records, whether electronic or in any other form, in accordance with applicable Law and the record retention policy of SCAN Group and the SCAN Companies, a copy of which has been provided to CareOregon.
Appears in 1 contract
Sources: Affiliation Agreement
Access. (a) Upon reasonable noticePrior to Closing, each of DISH and EchoStar the Company shall, upon reasonable advance notice 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 hours, (i) make available for inspection by Buyer and its Representatives all of the period prior Company's properties, assets, books of accounts, records (including the work papers of the Company's independent accountants) and Contracts and any other materials requested by any of them relating to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities Company and books its existing and records and, during such period, each of DISH prospective businesses and EchoStar shall furnish promptly to the other party all available information concerning its business assets and liabilities as DISH or EchoStar, as the case may be, Buyer may reasonably request; , (ii) make available to Buyer and its Representatives the officers, other senior management and Representatives of the Company for interviews, as Buyer and its Representatives may reasonably request, to verify and discuss the information furnished to Buyer and its Representatives and otherwise discuss the Company's existing and prospective businesses and assets and liabilities, (iii) help gain reasonable access for Buyer, at such times as Buyer and its Representatives may request, to the Company's employees, clients, customers, Affiliates or other Persons having a material business relationship with the Company, provided, however, that each party Buyer shall not contact any clients or customers without the prior consent of the Company, which consent shall not be required unreasonably withheld and (iv) reasonably assist Buyer and its Representatives in becoming familiar with the Company's existing and prospective businesses and assets and liabilities as Buyer and its Representatives may reasonably request. Any and all such investigations shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company and that would not reasonably be expected to permit any inspection or other access, or cause a Material Adverse Change to disclose any information, that the Company in the reasonable judgment of such party would: (i) violate any obligation of such party with respect event the Merger is not consummated and, to confidentiality or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilegeextent arising prior to the Closing, the attorney work product doctrine or any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that shall in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the terms of the Confidentiality Agreement so long as it satisfies between the definition Parties and to any confidentiality agreements or business agreements containing any non-use or non-disclosure provisions that exist between the Company and any of “Evaluation Material” contained thereinits clients or customers.
(b) To From and after Closing, but only to the extent that any of reasonably necessary to assist the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have Stockholder Representative in making a commonality of interest determination with respect to Milestone Revenue under Section 1.9 and the adjustments to the Effective Time Consideration pursuant to Section 1.13, Buyer and Surviving Corporation shall, upon reasonable advance notice and during normal business hours, (i) allow the Stockholder Representative to have access to Surviving Corporation personnel (including the Surviving Corporation President); and (ii) make available for inspection by the Stockholder Representative all of the Company's and Surviving Corporation's properties, assets, books of accounts, records (including the work papers of the Company's independent accountants) and Contracts and any other materials requested by him or her relating to the Company and its existing and prospective businesses and assets and liabilities as the Stockholder Representative may reasonably request. Any and all such matters investigations shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company and it is their desire, intention and mutual understanding that would not reasonably be expected to cause a Material Adverse Change to the sharing of such material Company in the event the Merger 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 the joint defense doctrineconsummated.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, At all times during normal business hours upon prior notice throughout the period prior 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 Effective Time, the Company shall afford Parent and its financial advisors, business consultants, legal counsel, accountants and other agents and representatives reasonable access during normal business hours, upon reasonable notice, to their respective personnel, the properties, Contracts, filings with Governmental Entities and books and records and, during such period, each and personnel of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestCompany; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, or information to disclose any information, the extent that in the reasonable judgment of such party would: (i) violate any obligation of applicable Law requires the Company to restrict or otherwise prohibit access to such party with respect to confidentiality documents or privacy; information, and (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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect access to such information. Each party shall use commercially reasonable security measures documents or information would give rise to access the systems and information a material risk of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that waiving any of the information or material furnished pursuant to this Agreement may include material subject to the 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 applicable to such protection under these privilegesdocuments or information; and provided, this Agreement and the joint defense doctrine.
(c) No exchange of further, that no information or knowledge obtained by Parent in any investigation conducted pursuant to the access contemplated by DISH or EchoStar or any of their respective Representatives this Section 7.6 shall affect or be deemed to affect, modify any representation or waive warranty of the representations and warranties of EchoStar or DISH, respectively, Company set forth in this AgreementAgreement or otherwise impair the 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 way that would not violate the applicable Law, Contract or obligation or to waive such a privilege including by providing such information in redacted form as necessary to preserve such a privilege or comply with such Law or otherwise make appropriate substitute disclosure arrangements, to the extent possible. Any investigation conducted pursuant to the access contemplated by this Section 7.6 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company and its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries. The terms and conditions of the Confidentiality Agreements shall apply to any information obtained by Parent or any of its 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 7.6. Except for disclosures expressly permitted by the terms of the Confidentiality Agreements, each of the Company and Parent shall hold, and shall cause their respective Representatives to hold, all information received from the other party or its Representatives, directly or indirectly, in confidence in accordance with the Confidentiality Agreements. Nothing in this Section 7.6 or elsewhere in this Agreement 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 information.
Appears in 1 contract
Sources: Merger Agreement (E2open Inc)
Access. (a) Upon At all times prior to the Closing, upon reasonable notice, each of DISH and EchoStar shall, ▇▇▇▇ shall afford and shall cause each of their respective Subsidiaries toAIGI to afford AIH and its officers, afford to the employees, counsel, accountants and other party and the other party’s Representatives authorized representatives ("Representatives") reasonable access, access during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH and EchoStar personnel and advisers (who will be instructed by ▇▇▇▇ to cooperate) and ▇▇▇▇ shall furnish and shall cause AIGI to furnish promptly to the other party AIH all available information concerning its business business, properties and personnel as DISH AIH or EchoStartheir respective Representatives may reasonably request, and AIH and their respective Representatives shall be entitled to discuss the affairs, finances and accounts of AIGI with the principal officers of AIGI and AIGI's independent public accountants and to consult with and advise such officers as to the case may bemanagement of AIGI, at such times and as often as AIH may reasonably request; provided that any review will be conducted in a way that will not interfere unreasonably with the conduct of AIGI's business, and provided, howeverfurther, that no review pursuant to this subsection (d) or otherwise shall affect or be deemed to modify any representation or warranty made by ▇▇▇▇. Each of the parties hereto hereby agrees on behalf of itself and each of its Representatives that the information received by such party as described above shall be kept confidential and that such parties will not use such information in any way detrimental to the providing person or its Affiliates (it being understood that such confidential information may be so disclosed to the extent necessary or required in order to comply with applicable law, rule or regulation or for legal, administrative or regulatory reasons or in order to enforce any rights hereunder). Confidential information 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: include information which (i) violate any obligation was or becomes generally available to the public other than as a result of disclosure by such first party with respect to confidentiality or privacy; its directors, officers, employees or agents, (ii) jeopardize protections afforded was or becomes available to such first party under on a nonconfidential basis prior to its disclosure to them by the attorney-client privilegeother party, the attorney work product doctrine or any other applicable privilege; or (iii) violate any Legal Requirementwas or becomes available to such first party on a nonconfidential basis from a source other than such other party's directors, including any Covid-19 Measure; oficers, employees or agents, provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements source is not bound by a confidentiality agreement with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.-12- e.
Appears in 1 contract
Sources: Stock Acquisition Agreement (Affinity Group Holding Inc)
Access. (a) Upon reasonable notice, each of DISH the Company shall afford Parent’s officers and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives authorized representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and the Company’s books and records and, during such period, each of DISH and EchoStar the Company shall furnish promptly to the other party Parent all readily available information concerning its business as DISH or EchoStar, as the case may be, Parent may reasonably request; provided, however, that each party the Company 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: the Company would be expected to (ia) result in the disclosure of any trade secrets of third parties, (b) violate any obligation of such party the Company with respect to confidentiality (c) violate or privacy; (ii) jeopardize result in loss or impairment of the protections afforded such party the Company under the attorney-client privilege, privilege or the attorney work product doctrine or any other applicable privilege; or (iiid) violate any Legal Requirement; and provided further, including any Covid-19 Measure; provided that Parent and the Company each agree to use commercially reasonable efforts to request consents to disclosure from third parties or establish a process that, through use of steps such as targeted redactions, provision of information to counsel to review and summarize for Parent or use of a ‘clean room’ environment for analysis and review of information by joint integration teams in each case of clauses (i)coordination with counsel and the Company, (ii) and (iii) such party shall inform will provide Parent with timely access to the other party of fullest extent possible to the nature substance of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to described in this Section 4.8(a5.6(a) shall be subject to in a manner that does not violate the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinforegoing provisions.
(b) To the extent that any of the No information or material furnished knowledge obtained by Parent in any investigation conducted pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
Section 5.6: (ci) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affectmodify any representation or warranty of the Company set forth herein or the conditions to the obligations of Parent and Acquisition Sub to consummate the transactions contemplated hereby, modify including the Offer and the Merger, (ii) shall limit or waive otherwise affect Parent’s right to rely on the Company’s representations and warranties of EchoStar or DISH, respectively, set forth 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 remedies available to Parent and Acquisition Sub under this Agreement and applicable Legal Requirements. All information obtained by Parent and its representatives pursuant to this Section 5.6 shall be treated as “Confidential Information” for purposes of the Confidentiality Agreement.
Appears in 1 contract
Access. (a) Upon From the Execution Date until the earlier of termination of this Agreement in accordance with its terms and the Closing (the “Interim Period”), the Company shall provide Parent and its Representatives with reasonable noticeaccess, each upon reasonable prior notice and during normal business hours, to all Assets owned, leased or operated by the Company Entities, and shall use commercially reasonable efforts to provide Parent and its Representatives access to all Assets operated by third parties, Records, Contracts, documents, officers, employees, agents, legal advisors, accountants and properties of DISH the Company Entities, and EchoStar the Company shall furnish reasonably promptly to Parent and its Representatives such information concerning the Company Entities and their Assets, business, Records, Contracts, properties and personnel as may be reasonably requested, from time to time, by or on behalf of Parent. Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business of the Company Entities. The Company shall have the right to have a Representative present for any communication with officers of the Company Entities, and Parent shall, and shall use commercially reasonable efforts to cause each of their respective Subsidiaries its Representatives to, afford observe and comply with all applicable health, safety and security requirements of the Company Entities if Parent exercises its rights to access any Assets or properties of the Company Entities under this Section 6.2. Neither Parent nor its Representatives shall contact any of the employees, customers, suppliers, or other party parties that have business relationships with the Company Entities in connection with the Transactions without the specific prior written authorization of the Company. For purposes of clarification, Parent and the other party’s its Representatives reasonable access, during normal business hours upon prior notice throughout the period prior shall be permitted to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestconduct environmental assessments; provided, however, that each party in no event shall not such assessments include any right to perform invasive or subsurface investigations of the properties or facilities of any Company Entity without the prior written consent of the Company. Parent shall hold in confidence all information disclosed to Parent or its Representatives hereunder on the terms and subject to the conditions contained in the Confidentiality Agreement. Notwithstanding anything to the contrary in this Section 6.2, Parent shall have no right of access to, and none of the Company Entities or any of their respective Affiliates shall have any obligation to provide any information (1) relating to bids received from others in connection with the Transactions and information and analysis (including financial analysis) relating to such bids or (2) the disclosure of which could reasonably be required expected to permit (x) jeopardize any inspection privilege available to any Company Entity or other accessany of its respective Affiliates, (y) cause any Company Entity or any of its respective Affiliates to breach a Contract, or to disclose any information(z) result in a violation of Law; provided that, that in the reasonable judgment event that the restrictions in clause (2) 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 privilegethis sentence apply, 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 (iii) such party Company shall inform the other party of the nature provide Parent with a reasonably detailed description of the information being withheldnot provided, and the Company shall use cooperate in good faith to design and implement alternative disclosure arrangements to enable Parent to evaluate such information without violating such Law or Contract or jeopardizing such privilege. Subject to the limitations set forth in Section 11.13, to the extent Parent has any assets other than its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to interest in the Trust Account, promptly upon completion of any access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to under this Section 4.8(a) 6.2, Parent shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinrepair at its sole expense any damage caused by such access.
(b) To During the extent Interim Period, Parent shall provide the Company and its Representatives with reasonable access, upon reasonable prior notice and during normal business hours, to all Assets, books and records, Contracts, documents, officers, employees, agents, legal advisors and accountants of Parent, and Parent shall furnish reasonably promptly to the Company and its Representatives such information concerning Parent’s business, books and records, Contracts, properties and personnel as may be reasonably requested, from time to time. The Company and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business of Parent. Notwithstanding anything to the contrary in this Section 6.2, the Company shall have no right of access to, and Parent and its Affiliates shall not have any obligation to provide any information the disclosure of which could reasonably be expected to (x) jeopardize any privilege available to Parent or any of its Affiliates, (y) cause Parent or any of its Affiliates to breach a Contract, or (z) result in a violation of Law; provided that, in the event that any the restrictions in this sentence apply, Parent shall provide the Company with a reasonably detailed description of the information or material furnished pursuant to this Agreement may include material subject to the 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 toprovided, and Parent shall not, waive or diminish cooperate in any way good faith to design and implement alternative disclosure arrangements to enable the confidentiality of such material or its continued protection under the attorney-client privilege, work product doctrine or any other applicable privilege. All Company to evaluate such information that is entitled to protection under the attorney-client without violating such Law or Contract or jeopardizing such 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) No exchange Subject to the limitations set forth in Section 11.13, to the extent Parent has any assets other than its interest in the Trust Account, Parent agrees to indemnify, defend and hold harmless the Company, its respective Affiliates and its and their respective Representatives for any and all Losses incurred by the Company, its respective Affiliates or its or their respective Representatives arising solely as a result of actions taken by Parent or its Representatives at any Company Real Property pursuant to the access rights under Section 6.2(a), including any Claims by any of Parent’s Representatives for any injuries or property damage while present on the Company Real Property; provided that the foregoing indemnification shall not apply to such Claims and Losses as are caused by the willful misconduct or gross negligence of the Company, its Affiliates or its and their respective Representatives, or any Company Entity.
(d) During the Interim Period, each Blocker Company shall provide Parent and its Representatives with reasonable access, upon reasonable prior notice and during normal business hours, to all Assets, books and records, Contracts, documents, officers, employees, agents, legal advisors and accountants of such Blocker Company, and such Blocker Company shall furnish reasonably promptly to Parent and its Representatives such information or investigation by DISH or EchoStar concerning such Blocker Company’s business, books and records, Contracts, properties and personnel as may be reasonably requested, from time to time. Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business of such Blocker Company. Notwithstanding anything to the contrary in this Section 6.2, Parent shall have no right of access to, and such Blocker Company and its Affiliates shall not have any obligation to provide any information the disclosure of which could reasonably be expected to (x) jeopardize any privilege available to such Blocker Company or any of their respective Representatives shall affect its Affiliates, (y) cause such Blocker Company or be deemed any of its Affiliates to affectbreach a Contract, modify or waive (z) result in a violation of Law; provided that, in the representations and warranties of EchoStar or DISH, respectively, set forth event that the restrictions in this Agreementsentence apply, such Blocker Company shall provide Parent with a reasonably detailed description of the information not provided, and such Blocker Company shall cooperate in good faith to design and implement alternative disclosure arrangements to enable Parent to evaluate such information without violating such Law or Contract or jeopardizing such privilege.
Appears in 1 contract
Sources: Merger Agreement (Matlin & Partners Acquisition Corp)
Access. (a) Upon reasonable notice, each of DISH and EchoStar 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 During the period prior commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall (and shall cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable notice, to their respective personnel, the properties, Contracts, filings with Governmental Entities and books and records and, during such period, each and personnel of DISH the Company and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestSubsidiaries; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, or information to disclose any information, the extent that in the reasonable judgment of such party would: (i) any applicable Law requires the Company or its Subsidiaries to restrict or otherwise prohibit access to such documents or information, (ii) granting such access would violate any obligation obligations of such party the Company or any of its Subsidiaries with respect to confidentiality to any third party or privacy; (ii) jeopardize protections afforded such otherwise breach, contravene or violate, constitute a default under, or give a third party under the attorney-client privilegeright to terminate or accelerate an obligation under, any then effective Contract to which the attorney work product doctrine Company or any other applicable privilege; or of its Subsidiaries is a party, (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect access to such information. Each party shall use commercially reasonable security measures documents or information would reasonably be expected to access the systems and information result in a waiver of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 applicable to such protection under these privileges, this Agreement and the joint defense doctrine.
(c) No exchange of documents or information or (iv) such documents or information relate to the evaluation or negotiation of this Agreement, the transactions contemplated hereby or, subject to Section 5.2, an Acquisition Proposal or Superior Proposal. In the event that the Company does not provide access or information in reliance on clauses (i), (ii), or (iii) of the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate any applicable Law, Contract or obligation or waive such a privilege, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that the Company reasonably determines would not would jeopardize the health and safety of any employee of the Company or its Subsidiaries. Any investigation conducted pursuant to the access contemplated by DISH this Section 6.5 (1) shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company or EchoStar its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of their respective its Subsidiaries, and (2) shall be subject to 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 or any of its Representatives shall affect or be deemed in connection with any investigation conducted pursuant to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth access contemplated by this Section 6.5. Nothing in this AgreementSection 6.5 or elsewhere in this Agreement 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 information, subject to the Company’s obligations under Section 6.11.
Appears in 1 contract
Access. (a) Upon Subject to applicable Law relating to the sharing of information, upon reasonable notice, and except as may otherwise be required by applicable Law, NYSE Euronext and Deutsche Börse each of DISH and EchoStar shall, shall (and shall cause each of their respective its Subsidiaries to) afford the other’s officers, afford to the employees, counsel, accountants, consultants and other party and the other party’s Representatives authorized representatives (“Representatives”) reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested; provided that no investigation pursuant to this Section 7.5 shall affect or be deemed to modify any representation or warranty made by NYSE Euronext or Deutsche Börse; provided, howeverfurther, that each party the foregoing shall not be required require NYSE Euronext or Deutsche Börse (i) to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) NYSE Euronext or Deutsche Börse, as the case may be, would result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality if NYSE Euronext or privacy; (ii) jeopardize protections afforded Deutsche Börse, as the case may be, shall have used reasonable best efforts to obtain the consent of such third party under the attorney-client privilege, the attorney work product doctrine to such inspection or any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i)disclosure, (ii) and to disclose any privileged information of NYSE Euronext or Deutsche Börse, as the case may be, or any of its Subsidiaries, (iii) such party shall inform in the case of NYSE Euronext, (x) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by NYSE Euronext or any of its Subsidiaries or any other party regulatory activities conducted by NYSE Euronext or any of its Subsidiaries that the Chief Executive Officer of NYSE Euronext Regulation, Inc. determines, in his or her sole discretion, is confidential and inappropriate to disclose to Deutsche Börse, or (y) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by NYSE Euronext Stock Exchange LLC or NYSE Euronext Arca, Inc. or any other regulatory activities that the Chief Executive Officer of NYSE Euronext Regulation, Inc. determines, in his or her sole discretion, is confidential and inappropriate to disclose to Deutsche Börse. (iv) in the case of Deutsche Börse, (x) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries or any other regulatory activities conducted by Frankfurt Stock Exchange or any entity which is a Self-Regulatory Organization and the direct or indirect shareholder of which is Deutsche Börse (together the “Self-Regulated Deutsche Börse Entities”), if the competent body of the nature relevant Self-Regulated Deutsche Börse Entity determines, in his or her sole discretion, that such information is confidential and inappropriate to disclose to NYSE Euronext, or (y) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by the BaFin or the Hessian Ministry for the Economy (Hessisches Ministerium für Wirtschaft) or any other competent public regulatory body relating to Frankfurt Stock Exchange or any entity the direct or indirect shareholder of which is Deutsche Börse, if the competent body of the relevant entity determines, in his or her sole discretion, that such information being withheld, is confidential and shall use its reasonable best efforts inappropriate to make alternative arrangements with respect disclose to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyNYSE Euronext. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 7.5 shall be subject directed to an executive officer of NYSE Euronext or Deutsche Börse, as the case may be, or such Person as may be designated by either of their executive officers, as the case may be, with a copy to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 General Counsel 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 privilegeparty. All such information that is entitled to protection under shall be governed by the attorney-client privilege, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and terms of the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
Appears in 1 contract
Access. (a) Upon Patheon will give Client reasonable noticeaccess at mutually agreeable times to the areas of the Manufacturing Site in which the Products are manufactured, each of DISH and EchoStar shallstored, handled, or shipped to permit Client to verify that the Manufacturing Services are being performed in accordance with the Specifications, cGMPs, and shall cause Applicable Laws. But, with the exception of “For-Cause Audits”, Client will be limited each of their respective Subsidiaries toYear to one cGMP-type audit, afford to the other party lasting no more than two (2) Business Days per Manufacturing Site, and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestinvolving no more than two auditors; provided, howeverthat if such audit becomes a For Cause Audit as a result of issues discovered during such audit, that each party then the limits set forth herein with respect to such audit shall not be required to permit any inspection or other accessapply. Client may request additional cGMP-type audits, additional audit days, or the participation of additional auditors, subject to disclose any informationpayment to Patheon of a fee of $[…***…] for each additional audit day and $[…***…] per audit day for each additional auditor. However, that in the reasonable judgment event any of such party wouldthe following circumstances arise, Client may elect and Patheon shall permit Client to conduct additional audits (each, a “For Cause Audit”) in a timely manner: (i) violate where there is the occurrence of a condition or event relating to the API or any obligation of such party with respect to confidentiality or privacyProduct which constitutes a serious health risk; (ii) jeopardize protections afforded such where either party under has received correspondence or a report from a Regulatory Authority pointing out a deficiency by or on behalf of Patheon; (iii) where the attorney-client privilege, Specifications have not been complied with or there is otherwise evidence that compliance with the attorney work product doctrine or any other applicable privilegeSpecifications is at risk; or (iiiiv) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case the event of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject a Recall related to the Confidentiality Agreement so long as it satisfies the definition Product. The right of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, access set forth in this AgreementSection 7.5 will not include a right to access or inspect Patheon’s financial records. In addition, upon the request of any Regulatory Authority having jurisdiction over the manufacture of Product hereunder, such Regulatory Authority shall have access to observe, audit and inspect any Manufacturing Site and Patheon’s procedures used for the manufacture, release and stability testing, and/or warehousing of Product and to audit such facilities and procedures for compliance with cGMP and/or other regulatory requirements. Patheon specifically agrees to cooperate with any inspection by a Regulatory Authority, whether prior to or after Regulatory Approval of a Product, and to provide Client a copy of any inspection or audit report resulting from any such inspection.
Appears in 1 contract
Sources: Manufacturing Services Agreement (Optimer Pharmaceuticals Inc)
Access. (a) Upon Subject to applicable Law, upon reasonable notice, each of DISH and EchoStar shall, the Company shall (and shall cause each of their respective its Subsidiaries to) afford Parent’s officers and other authorized Representatives of it and its Affiliates who are subject to confidentiality obligations no less restrictive than the confidentiality obligations set forth in the Confidentiality Agreement, afford to the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnelits and its Subsidiaries’ employees, properties, Contractsbooks, filings with Governmental Entities and books contracts and records and instruct the appropriate employees of the Company and its Subsidiaries to cooperate reasonably with Parent and its officers and other authorized Representatives in connection with the foregoing (including for purposes of integration planning); and, during such period, each of DISH the Company shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party Parent all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably request; be requested, provided that no investigation pursuant to this Section 7.5 shall affect or be deemed to modify any representation or warranty made by the Company herein, and provided, howeverfurther, that each party the foregoing shall not be required require the Company (i) to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) the Company would result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under if 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 (iii) such party Company shall inform the other party of the nature of the information being withheld, and shall use its have used reasonable best efforts to make alternative arrangements with respect obtain the consent of such third party to such information. Each party shall use commercially reasonable security measures inspection or disclosure or (ii) to access the systems and disclose any privileged information of the other partyCompany or any of its Subsidiaries. Without limiting the generality of the foregoing, the Company shall reasonably cooperate and assist the Parent in its efforts to retain the Company’s Financial Advisors following the Closing, including to (a) coordinate in-person meetings with key Financial Advisors (except as would unreasonably interfere with the business of the Company or any of its Subsidiaries) and (b) provide Parent with reasonably prompt notice upon becoming aware that any Financial Advisor with 12 month trailing gross dealer concessions equal to or greater than $300,000, or any member of senior management of the Company or any of its Subsidiaries, resigns from his or her employment or terminates his or her relationship (or clearly indicates to a member of management of the Company an intention to resign or terminate its relationship), as the case may be, with the Company or any of its Subsidiaries. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 7.7 shall be subject directed to the Confidentiality Agreement so long as it satisfies executive officer or other Person designated by the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 privilegeCompany. All such information that is entitled to protection under shall be governed by the attorney-client privilege, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and terms of the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
Appears in 1 contract
Sources: Merger Agreement (Ladenburg Thalmann Financial Services Inc.)
Access. (a) Upon reasonable notice, each of DISH From the date hereof through and EchoStar including the Interim Closing Date: (i) IFMI and its Representatives shall, and shall cause each of its Affiliates and its respective Representatives to, provide, upon reasonable prior written notice from the PrinceRidge Entities, and to the extent not yet existing, prepare and furnish as reasonably requested by the PrinceRidge Entities, their respective Subsidiaries tocounsel, afford financial advisers, prospective lenders, auditors and other authorized Representatives (A) reasonable access to the other party and the other party’s Representatives reasonable accessoffices, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnelemployees, properties, Contracts, filings with Governmental Entities and books and records andrecords, during including regulatory audits, of the Business and (B) such periodfinancial, each of DISH treasury, operating data and EchoStar shall furnish promptly to the related data and other party all available information concerning its business as DISH or EchoStar, as the case may be, such Persons may reasonably request; provided, howeverthat, that in each party case, such access rights shall not be required deemed to permit any inspection or other accessinclude access to customers, or suppliers, vendors, distributors, creditors, employees, business associates and others with whom IFMI has commercial dealings that are sensitive to disclose any information, that in the reasonable judgment businesses of such party would: (i) violate any obligation of such party with respect to confidentiality or privacyIFMI and its Affiliates; and (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 (iii) such party shall inform the other party of the nature of the information being withheldIFMI shall, and shall use cause each of its reasonable best efforts Affiliates to, instruct its respective Representatives to make alternative arrangements cooperate with respect the PrinceRidge Entities in their investigation (which access shall include the provision of such data, periodic and other reports and other information as the PrinceRidge Entities request to such information. Each party shall use commercially reasonable security measures facilitate the PrinceRidge Entities’ ability to access the systems conduct transition planning and information to remain informed of material aspects of the other partyBusiness). All confidential information obtained In furtherance of the foregoing, IFMI shall provide office space at locations requested by each party the PrinceRidge Entities for Representatives of the PrinceRidge Entities, together with customary administrative support, and shall give Representatives of the PrinceRidge Entities reasonable opportunity to participate in regular meetings and conference calls with senior management of IFMI Parent and its Subsidiaries, so as to enable such Representatives to contribute to an efficient consummation of the Transactions and ensure the most efficient possible transition; provided, that prior to the Interim Closing the PrinceRidge Entities shall not have control over the management of IFMI by virtue of its office space at the designated locations or its participation in such meetings or calls. No investigation pursuant to this Section 4.8(a) 5.2 shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinalter any representation or warranty given hereunder by IFMI.
(b) To From the date hereof through the Interim Closing, (i) each of the PrinceRidge Entities and its Representatives shall, and shall cause each of its Affiliates and its respective Representatives to, provide, upon reasonable prior written notice from IFMI, and to the extent not yet existing, prepare and furnish as reasonably requested by IFMI, their respective counsel, financial advisers, prospective lenders, auditors and other authorized Representatives (A) reasonable access to the offices, employees, properties, books and records, including regulatory audits, of its businesses, and (B) such financial, treasury, operating data and related data and other information as such Persons may reasonably request; provided, that, in each case, such access rights shall not be deemed to include access to customers, suppliers, vendors, distributors, creditors, employees, business associates and others with whom any PrinceRidge Entity has commercial dealings that are sensitive to the businesses of any PrinceRidge Entity and its Affiliates; and (ii) each of the PrinceRidge Entities shall, and shall cause each of its Affiliates to, instruct its respective Representatives to cooperate with IFMI in its investigation (which access shall include the provision of such data, periodic and other reports and other information as IFMI request to facilitate IFMI’s ability to conduct transition planning and to remain informed of material aspects of the businesses of the PrinceRidge Entities). In furtherance of the foregoing, each of the PrinceRidge Entities shall provide office space at locations requested by IFMI for Representatives of IFMI, together with customary administrative support, and shall give Representatives of IFMI reasonable opportunity to participate in regular meetings and conference calls with senior management of each of the PrinceRidge Entities, so as to enable such Representatives to contribute to an efficient consummation of the Transactions and ensure the most efficient possible transition; provided, that prior to the Interim Closing IFMI shall not have control over the management of either of the PrinceRidge Entities by virtue of its office space at the designated locations or material furnished its participation in such meetings or calls. No investigation pursuant to this Agreement may include material subject to Section 5.2 shall alter any representation or warranty given hereunder by the 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 the joint defense doctrinePrinceRidge Entities.
(c) No exchange All information received pursuant to this Section 5.2 shall be governed by the terms of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
Appears in 1 contract
Sources: Contribution Agreement (Institutional Financial Markets, Inc.)
Access. (a) Upon reasonable noticeSubject to applicable law and except as otherwise contemplated by this Agreement, each from the date of DISH and EchoStar shallthis Agreement until the Effective Time, the Company shall (and shall cause each of the Company Subsidiaries to) (i) upon reasonable prior notice, give Parent and Purchaser and their respective Subsidiaries to, afford to the officers and other party and the other party’s authorized Representatives reasonable access, access during normal business hours upon prior notice throughout to its Company Agreements, contracts, books, records, Tax Returns, analysis, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the period prior Company and its accountants and accountants’ work papers and (ii) furnish Parent and Purchaser on a timely basis with such financial and operating data and other information with respect to the Effective Time, to their respective personnelits business, properties, Contracts, filings with Governmental Entities personnel and books Company Agreements as Parent and records and, during such period, each of DISH Purchaser may from time to time reasonably request and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect available at all reasonable times during normal business hours to such information. Each party shall use commercially reasonable security measures to access officers and other authorized Representatives of Parent and Purchaser the systems appropriate individuals (including management personnel, attorneys, accountants and information other professionals) for discussion of the Company’s business, properties, prospects and personnel as Parent or Purchaser may reasonably request. In addition, the Company shall furnish promptly to Parent (x) a copy of each material report, schedule, statement and other party. All confidential information obtained document submitted or filed by each party it with any Governmental Entity and its Representatives pursuant to this Section 4.8(a(y) shall be subject the internal or external reports prepared by it in the ordinary course of business that are reasonably required by Parent promptly after such reports are made available to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinCompany’s personnel.
(b) To the extent that any of the information No investigation heretofore conducted or material furnished conducted pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives Section 6.2 shall affect or be deemed to affect, modify any representation or waive warranty made by the representations and warranties parties hereunder or any conditions to the obligations of EchoStar the parties hereunder or DISH, respectively, any condition or requirement set forth in Annex I.
(c) Notwithstanding anything to the contrary set forth in this Agreement, the Company shall not be required to provide access, or to disclose information, pursuant to Section 6.2(a) where such access or disclosure would, in the Company’s reasonable judgment, (i) result in the disclosure of any Trade Secrets of third parties or violate any of the Company’s obligations with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Company Agreement; provided, that the Company shall have used reasonable best efforts to obtain the consent of such third party to such access or disclosure without requiring the Company to pay any amount or waive any rights to obtain such consent, (ii) jeopardize the attorney-client or other privileges of the Company or (iii) breach, contravene or violate any applicable law (including the HSR Act or any other antitrust or competition law).
Appears in 1 contract
Sources: Merger Agreement (Mgi Pharma Inc)
Access. (a) Upon reasonable noticeDuring the Pre-Closing Period, each of DISH Parent and EchoStar Seller shall, and shall cause each of their respective Subsidiaries the Sold Companies to, (i) reasonably cooperate with Buyer to facilitate the transition to Buyer on or as soon as reasonably practicable following the Closing Date of the IT systems and network used in the operation of the Business or by the Sold Companies (provided that such cooperation does not materially interfere with the Business or the business of Seller), and (ii) afford to the other party and the other party’s Representatives Buyer, through its authorized Representatives, reasonable access, access during normal business hours and upon prior reasonable written notice throughout the period prior to Seller, to the Effective Time, to their respective personnelofficers, properties, assets, Contracts, filings with Governmental Entities and financial information, books and records andof the Sold Companies (including working papers and data in the possession of Seller or its Affiliates (including the Sold Companies) or their respective accountants); provided that such access does not materially interfere with the normal business operations of Seller or the Sold Companies and shall not include any invasive or destructive sampling or testing of any environmental medium or building material; provided, during further, Buyer shall not have access to personnel records of Seller or its Affiliates relating to individual performance or evaluation records, medical histories or other information which in Seller’s good faith opinion is sensitive or the disclosure of which could subject Seller or any of its Affiliates to risk of Liability. If the foregoing access involves entry onto any properties of the Sold Companies, (i) Seller shall be entitled to have a Representative of Seller accompany Buyer or its authorized Representatives at all times and (ii) Buyer shall indemnify and hold Seller and its Affiliates, harmless from and in respect of any and all Losses that they may incur arising out of or due to such period, each of DISH and EchoStar shall furnish promptly access to the extent caused by the failure of Buyer or its authorized Representatives to comply with the material policies of the Business. Notwithstanding anything to the contrary in this Agreement, Seller and the Sold Companies shall not be required to disclose (A) any information to Buyer if Seller believes in good faith that such disclosure would be reasonably likely to (x) jeopardize any attorney-client privilege or (y) violate any applicable Law or any contractual confidentiality obligation of Parent or Seller, (B) information relating to any sale or divestiture process conducted by Seller or its Affiliates for the Business or Seller’s or its Affiliates’ (or their Representatives’) evaluation of the Business in connection therewith, including projections, financial or other party all available information concerning relating thereto, or (C) any consolidated, combined, unitary or similar Tax Return of which Seller or any of its business as DISH Affiliates (other than the Sold Companies) is the common parent or EchoStar, as any other information relating to Taxes or Tax returns other than information relating solely to the case may be, may reasonably requestSold Companies; provided, however, that each party of Parent and Seller 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 cooperate 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) Buyer and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures efforts to design and implement alternative disclosure arrangements and, to the extent available, use such alternative disclosure arrangements to provide information, documents and access the systems and information of the other party. All confidential information obtained by each party to Buyer and its Representatives in a manner that would not violate applicable Law, violate the confidentiality obligations of any Contract or cause the loss of attorney-client privilege with respect thereto. The parties agree that the provisions of the Confidentiality Agreement shall continue in full force and effect following the execution and delivery of this Agreement until the Closing, and all information obtained pursuant to this Section 4.8(a) 5.2 shall be subject to kept confidential in accordance with the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (L3 Technologies, Inc.)
Access. (a) Upon reasonable noticeBAM shall give to Bidder's officers, each of DISH employees, counsel, accountants and EchoStar shall, other representatives free and shall cause each of their respective Subsidiaries to, afford full access to the other party and the other party’s Representatives reasonable accessright to inspect, during normal business hours upon prior notice throughout hours, all of the period prior to the Effective Time, to their respective personnelpremises, properties, Contractsassets, filings records, contracts and other documents relating to the BAM Contributed Assets or the BAM Assumed Liabilities and shall permit them to consult with Governmental Entities the officers, employees, accountants, counsel and books agents of BAM for the purpose of making such investigation of the BAM Contributed Assets or the BAM Assumed Liabilities, as Bidder shall desire to make, provided that such investigation shall not unreasonably interfere with the business operations of BAM. Furthermore, BAM shall furnish to Bidder all such documents and copies of documents and records and, during such period, each of DISH and EchoStar shall furnish promptly information with respect to the other party all available information concerning BAM Contributed Assets or the BAM Assumed Liabilities and copies of any working papers relating thereto as Bidder shall from time to time reasonably request and shall permit Bidder and its business agents to make such physical inventories and inspections of the BAM Contributed Assets or the BAM Assumed Liabilities as DISH or EchoStar, as the case may be, Bidder may reasonably request; providedrequest from time to time. Notwithstanding the foregoing provisions of this Section 6.1.5, however, that each party BAM shall not be required to permit provide any inspection or other accesssuch information to Bidder if, 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 (iii) such party shall inform the other party determination of the nature general counsel of the information being withheldBAM, and shall use its reasonable best efforts to make alternative arrangements with respect access to such information. Each party shall use commercially reasonable security measures to access information by Bidder is prohibited by the systems and information provisions of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any confidentiality agreements binding upon BAM or any of the information Transferring Partnerships or material furnished pursuant by applicable Law. Press Releases. Except as required by applicable Law or in connection with communications with the other partners of the Transferring Partnerships or the process of obtaining consents contemplated by Sections 2.3.5 and 2.3.6 hereof, BAM shall not give notice to third parties or otherwise make any public statement or releases concerning this Agreement may include material subject or the transactions contemplated hereby except for such written information as shall have been approved in writing as to form and content by Bidder, which approval shall not be unreasonably withheld or delayed and except in connection with obtaining a required consent to or approval of the attorney-client privilege, work product doctrine or any other applicable privilege, transactions contemplated by 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 Agreement from 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 the joint defense doctrinethird party so notified.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. The Company shall (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective its Subsidiaries to, ) afford to the officers, employees, accountants, counsel and other party authorized representatives of the Parent full and the other party’s Representatives complete access upon reasonable accessnotice and at reasonable times, during normal business hours upon prior notice throughout the period prior to the earlier of the Effective TimeTime or the Termination Date, to their respective personnel, its properties, Contractsoffices, filings with Governmental Entities and employees, contracts, commitments, books and records and(including but not limited to Tax Returns and computer and information systems) and any report, during such period, schedule or other document filed or received by it pursuant to the requirements of federal or state securities laws and shall (and shall cause each of DISH and EchoStar shall its Subsidiaries to) furnish promptly to the Parent such additional financial and operating data and other party all available information concerning as to its business as DISH or EchoStar, and its Subsidiaries' respective businesses and properties as the case Parent may be, may from time to time reasonably request; provided, however, that the Parent's access to the Company's businesses which directly compete with the Parent (LaTouraine, ▇▇▇▇'▇ and Chock Food Service Distribution and Convenience Stores ("CFS"), collectively, the"Competing Businesses") shall be limited to the top manager of each party Competing Business and shall not be required to permit any inspection include customer lists and information regarding specific customer locations, contract terms or other access, information relating to the cost structure or to disclose any informationmargins of the Competing Businesses; provided further, that in the reasonable judgment immediately preceding proviso shall not limit Parent's access to information regarding the costs of such party would: (i) violate manufacturing, freight and storage of the CFS business. From and after the date of this Agreement until the earlier of the Closing Date or the first anniversary of any obligation termination of such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilegethis Agreement, the attorney work product doctrine Parent and its Subsidiaries agree not to solicit for employment any person employed by the Competing Businesses or employ any person known by the Parent to be an employee of the Company at the time of employment. In the event that the transactions contemplated hereby are not consummated, the Parent and each of its officers, employees, accountants, counsel and other authorized representatives shall keep any information obtained in accordance with this Section 5.4 confidential and not use such information for any other applicable privilege; or (iii) violate purpose. The Parent and the Sub will use all reasonable efforts to minimize any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party shall inform disruption to the other party businesses of the nature of Company and its Subsidiaries which may result from the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems requests for data and information of the other partyhereunder. All confidential information obtained by each party and its Representatives No investigation pursuant to this Section 4.8(a) 5.4 shall be subject affect any representation or warranty in this Agreement of any party hereto or any condition to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any obligations of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrinehereto.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Lee Sara Corp)
Access. (a) Upon reasonable noticeSubject to compliance with applicable Laws, the Company shall afford to Parent and to its officers, employees, accountants, consultants, legal counsel, financial advisors, financing sources and agents and other representatives (each of DISH and EchoStar shallthe foregoing, and shall cause each of their respective Subsidiaries toother than Parent, afford to the other party and the other party’s Representatives a “Representative”) reasonable access, access during normal business hours upon prior notice hours, throughout the period prior to the earlier of the Effective TimeTime and the Termination Date, to their respective personnelthe Company’s and its Subsidiaries’ senior executives, properties, Contractscontracts, filings with Governmental Entities and commitments, books and records andrecords, during other than any such periodmatters that relate to the negotiation and execution of this Agreement, each of DISH or, subject to Section 5.3, 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 Company shall (and EchoStar shall cause its Subsidiaries to) furnish reasonably promptly to Parent and its Representatives the weekly “Executive Reporting Package” (or comparable weekly reports) and monthly financial reports and such other party all available information concerning its about Parent’s business as DISH may be reasonably requested by Parent that has been or EchoStaris prepared by the Company (or is readily available without any preparation) in the ordinary course of business. The foregoing notwithstanding, as the case may be, may reasonably request; provided, however, that each party Company shall not be required to permit afford such access or furnish such information if it would unreasonably disrupt the operations of the Company or any inspection of its Subsidiaries, would cause a violation of any agreement to which the Company or other accessany of its Subsidiaries is a party, would cause a risk of a loss of privilege or trade secret protection to disclose the Company or any informationof its Subsidiaries or would constitute a violation of any applicable Law; provided, that the parties hereto shall cooperate 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) seeking and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect find a way to allow disclosure of such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinin a manner that does not result in such disruption, loss or violation.
(b) To the extent Parent hereby agrees that all information provided to it or any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have a commonality of interest its Representatives in connection 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 the joint defense doctrine.
consummation of the transactions contemplated hereby shall be deemed to be Confidential Information, as such term is used in, and shall be treated in accordance with, the confidentiality agreements between the Company and certain of the Equity Investors (cor their Affiliates) No exchange (the “Confidentiality Agreements”). The execution of information or investigation this Agreement by DISH or EchoStar or any of the Company shall constitute written consent by the Company pursuant to the Confidentiality Agreements to all actions by Parent, Merger Sub, the Equity Investors and their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in expressly permitted by this Agreement. The Company agrees that the Confidentiality Agreements are hereby amended, as applicable, to permit (subject to Sections 5.1(c) and 5.12) the inclusion of all prospective debt or equity investors, financing sources, outside agents and other advisors in the term “Representative” as such term is defined therein; provided that the total of any such new prospective equity investors does not exceed 30 without the Company’s prior written consent, not be be unreasonably withheld, delayed or conditioned.
Appears in 1 contract
Sources: Merger Agreement (Petsmart Inc)
Access. (a) Upon reasonable noticeFollowing the Closing, each of DISH until the Audited Closing Financial Statements and EchoStar the Audited Closing Net Equity Statement become the Final Closing Financial Statements, Purchaser shall, and shall cause each of their respective Subsidiaries its Affiliates to, afford to the other party and the other party’s Representatives provide reasonable access, access on reasonable notice during normal business hours upon prior notice throughout the period prior to ABB's employees and representatives to the Effective TimeAcquired Group's and each member of the Acquired Group's respective offices, employees agents, accountants (including the Business Auditors) and actuaries and to their respective personnelpremises, properties, Contractsbooks, filings with Governmental Entities accounting records and books and records and, during such period, each other documents (including supporting contractual documentation) of DISH and EchoStar shall furnish promptly the Acquired Group or available to the other party all available information concerning Acquired Group reasonably required for the purpose of agreeing or settling any dispute in relation to the Audited Closing Financial Statements or the Audited Closing Net Equity Statement and allow ABB to take copies of such documents. Neither Purchaser nor any of its business as DISH or EchoStar, as the case may be, may reasonably request; provided, however, that each party Affiliates shall not be required to permit under any inspection or other access, or obligation to disclose to ABB's employees or representatives any informationinformation the disclosure of which, that in according to the reasonable judgment advice of such party would: (i) violate any obligation of such party with respect to Purchaser's legal counsel, is restricted by confidentiality obligations or privacy; (ii) applicable Law or would jeopardize protections afforded such party under the attorney-client legal privilege, if any, accorded to any documents produced or prepared by the attorney work product doctrine legal representatives of Purchaser 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinAffiliates.
(b) To Prior to the extent that any Closing, and following delivery of the information or material furnished Audited Closing Financial Statements and the Audited Closing Net Equity Statement pursuant to this Agreement may include material subject to the attorney-client privilegeSection 3.4.2, 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 toABB shall, and shall notcause its Affiliates to provide reasonable access on reasonable notice during normal business hours to Purchaser's auditors, waive employees and representatives to the Acquired Group's and each member of the Acquired Group's respective officers, employees, agents, accountants (including the Business Auditors) and actuaries and to the premises, properties, books, accounting records and other documents (including supporting contractual documentation and the work papers of the Business Auditors relating to the audit of the Financial Statements and the Audited Closing Financial Statements, provided that Purchaser's auditors, employees and representatives have signed any release letter reasonably required by the Business Auditors in connection therewith) of the Acquired Group or diminish available to the Acquired Group reasonably required for the purpose of reviewing the Audited Closing Financial Statements and the Audited Closing Net Equity Statement and/or the purpose of agreeing or settling any dispute in any way relation to the confidentiality Audited Closing Financial Statements or the Audited Closing Net Equity Statement and allow Purchaser and its auditors to take copies of such material or its continued protection under the attorney-client privilege, work product doctrine or any other applicable privilegedocuments. 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) No exchange of information or investigation by DISH or EchoStar Neither ABB or any of their respective Representatives its Affiliates shall affect be under any obligation to disclose to Purchaser's auditors, employees and representatives any information the disclosure of which, according to the advice of ABB's legal counsel, is restricted by confidentiality obligations or be deemed applicable Law or would jeopardize the legal privilege, if any, accorded to affect, modify any documents produced or waive prepared by the representations and warranties legal representatives of EchoStar ABB or DISH, respectively, set forth in this Agreementits Affiliates.
Appears in 1 contract
Sources: Purchase Agreement (White Mountains Insurance Group LTD)
Access. (a) Upon During the Interim Period, upon reasonable advance notice, each of DISH and EchoStar the Company shall, and shall cause each of their respective its Subsidiaries to, (x) afford to the other party Parent Parties and the other party’s their Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Timehours, to their respective personnel, all properties, Contractsfacilities, filings with Governmental Entities officers, offices and other facilities, and books and records of the Acquired Companies and, during such period, each of DISH the Company shall, and EchoStar shall cause its Subsidiaries to, furnish promptly to the Parent Parties and their Representatives all other party all available information (financial or otherwise) concerning its business business, properties, books and records, Contracts, personnel, assets and liabilities of the Acquired Companies as DISH or EchoStar, as the case may be, Parent may reasonably requestrequest and (y) facilitate reasonable access to all Company Real Property in order to prepare or cause to be prepared (at Parent’s sole expense) surveys, inspections, engineering studies, Phase I environmental site assessments or other environmental assessments that do not involve invasive testing or sampling of soil, groundwater, indoor air or other environmental media, and other tests, examinations or studies with respect to any Company Real Property that Parent deems to be reasonably necessary, so long as such access does not unduly interfere with the Company’s ordinary conduct of business; provided, however, that each party 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 such party wouldthe Company could: (ia) violate any obligation of such party the Acquired Companies with respect to confidentiality confidentiality, non-disclosure or privacy; privacy to a Third Party or (iib) jeopardize protections afforded such party to any of the Acquired Companies under the attorney-client privilege, privilege or 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 (iii) such party shall inform the other party of the nature of the information being withhelddoctrine, and shall in any such event, the parties hereto will use its commercially reasonable best efforts to make alternative appropriate substitute disclosure arrangements with respect to such information. Each party (provided that the Company shall use commercially reasonable security measures efforts to allow for such access or disclosure in a manner that does not result in the systems and information events set out in clauses (a) through (b)). No investigation pursuant to this Section 5.5 shall affect or be deemed to qualify, modify or limit any representation or warranty in this Agreement of any party or any condition to the obligations of the other partyparties. All confidential requests for access pursuant to this Section 5.5 must be directed to the Chief Executive Officer of the Company or another Person designated in writing by the Company. All information obtained by each party Parent and its Representatives pursuant to this Section 4.8(a) 5.5 shall be subject to the Confidentiality Agreement so long treated as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to Acquired Companies for purposes of the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Condor Hospitality Trust, Inc.)
Access. (a) Upon reasonable noticePrior to the Closing Date or, if earlier, until the date this Agreement is terminated pursuant to Section 10.1, each of DISH and EchoStar shall, Seller shall afford (and shall cause each of their respective Subsidiaries to, afford the applicable Acquired Companies to the other party afford) to Buyer and the other party’s its authorized Representatives reasonable access, during normal business hours upon prior notice throughout hours, to (i) the period prior Records and Contracts (A) of the applicable Acquired Companies or (B) in the possession or control of Sellers or any of their Affiliates or Representatives and with respect to the Effective TimePipeline Interests and the Business, to their respective personneland (ii) the appropriate officers and employees of such applicable Acquired Companies, properties, Contracts, filings with Governmental Entities and books and records and, during such period, in each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStarcase, as reasonably requested by Buyer and as may be necessary to assist Buyer in connection with Buyer’s understanding and integrating of the case may be, may reasonably requestBusiness into Buyer’s organization following the Closing; provided, however, that such access shall be subject to and in accordance with the terms and conditions of the Disclosed Contracts, shall only be upon reasonable advance written notice, shall not unreasonably disrupt personnel or operations of the Business, and shall be at Buyer’s sole cost and expense. Each applicable Seller shall have the right to have Representatives present at all times during any inspections, interviews and examinations. Notwithstanding the foregoing, Buyer shall have no right of access to, and no Seller shall have any obligation to provide to Buyer, (1) information relating to bids received from Third Parties in connection with transactions similar to those contemplated by this Agreement and information and analysis (including financial analysis) relating to such bids; (2) any information the disclosure of which would reasonably be expected to jeopardize any privilege relating to such information available to the Acquired Companies, any Seller or any Affiliate of any Seller or would reasonably be expected to cause the applicable Acquired Companies, any Seller or any Affiliate of any Seller to breach a confidentiality obligation, which privilege or confidentiality obligation shall be disclosed to Buyer in summary form and in the event such privilege or obligation exists, Sellers shall use Commercially Reasonable Efforts to provide reasonable substitute arrangements for Buyer; (3) any information the disclosure of which would reasonably be expected to result in a violation of Law; or (4) any financial or proprietary information of or regarding any Seller or its Affiliates (excluding any applicable Acquired Company) or any other information regarding such Seller or its Affiliates (excluding any applicable Acquired Company) which such Seller reasonably deems in good faith commercially sensitive. It is further agreed that neither Buyer nor its Representatives shall contact any of the employees, customers, suppliers, contractors, lenders, landlords, licensors or Persons that have a business relationship with any Acquired Company in connection with the transactions contemplated hereby or the assets of any Acquired Company, whether in person or by telephone, mail or other means of communication, without the specific prior authorization of each party applicable Seller, which consent shall not be unreasonably withheld, conditioned or delayed, and without Representatives of such applicable Seller or applicable Sellers being present; provided, however that notwithstanding the foregoing or anything else in this Agreement to the contrary, Buyer and its Affiliates and its and their respective Representatives shall be permitted to contact the Operator without the prior authorization of any Seller as may be necessary to assist Buyer in connection with Buyer’s understanding and integrating of the Business into Buyer’s organization following the Closing or as otherwise contemplated by or required to permit in connection with the Operator Settlement Agreement.
(b) Buyer shall release, indemnify, defend and hold harmless the Seller Indemnified Parties effective as and from the Execution Date, from and against any inspection claims, demands, actions, causes of action or other accessLosses 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 disclose any informationPerson or property resulting from or relating to the activities of Buyer or its Representatives under Section 6.2(a) except to the extent that such claims, demands, actions, causes of action or Losses are caused by or result from the gross negligence or willful misconduct of any Seller Indemnified Party or result from matters discovered during such activities under Section 6.2(a) by Buyer or its Affiliates or Representatives to the extent such discoveries are of pre-existing conditions not caused or exacerbated by Buyer or such Persons. The foregoing indemnification obligation shall survive termination of this Agreement.
(c) From and after the Closing, Buyer shall preserve and keep the Records of the Acquired Companies (including all accounting records) to the extent relating to events that in occurred prior to the Closing for a period of four (4) years from the Closing, or for any longer periods as may be required by any Governmental Authority or ongoing Litigation. For a period of seven (7) years from the Closing, if Buyer wishes to destroy such Records after such time period, it shall give thirty (30) days’ prior written notice to Sellers, and each applicable Seller shall have the right at their option and expense, upon prior written notice within such thirty (30) day period, to take possession of the Records that existed as of the Closing Date, to the extent such Records are applicable to such Seller or its Affiliates, within thirty (30) days after the date of Buyer’s notice to Sellers. From and after the Closing, Buyer agrees, upon reasonable judgment prior notice from the applicable Sellers, during normal business hours and at the requesting Seller’s sole cost and expense, to provide to each such applicable Seller access to or copies of such party would: Records of the Acquired Companies to the extent (i) violate any obligation of such party with respect relating to confidentiality or privacy; (ii) jeopardize protections afforded such party under events that occurred prior to 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)Closing, (ii) needed for a legitimate business purpose and (iii) such party shall inform Records are applicable to such requesting Seller; provided, that, for the avoidance of doubt, neither of COG nor WGLM may request or receive Records under this Section 6.2(c) to the extent relating to any Acquired Company or Acquired Companies other party of than the nature of the information being withheldCompany, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information neither of the other party. All confidential information obtained by each party and its Representatives pursuant to VED I nor ▇▇▇ ▇▇ may request or receive Records under this Section 4.8(a6.2(c) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinextent relating to EIF ▇▇▇▇▇.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (NextEra Energy Partners, LP)
Access. (a) Upon reasonable prior notice, each of DISH Purchaser, TWG Re and EchoStar shall, TWG shall (and shall cause each of their its respective Subsidiaries to, ) afford to the other party parties hereto and the other party’s their Representatives (including potential Debt Financing Sources and their representatives) reasonable access, access during normal business hours upon prior notice throughout hours, during the period prior to the Effective TimeClosing, to their respective personnelall its officers, employees, properties, Contractsoffices, filings with Governmental Entities plants and other facilities and to all books and records records, including financial statements, other financial data and monthly financial statements within the time such statements are customarily prepared, and, during such period, each of DISH Purchaser, TWG Re and EchoStar TWG shall (and shall cause its respective Subsidiaries to) furnish as promptly as reasonably practicable to the other party hereto and its Representatives (including Debt Financing Sources and their representatives), consistent with its legal obligations, all available other information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, such Person may reasonably request, including, in the case of Purchaser requesting from TWG, for the period beginning one month prior to the anticipated Closing Date (and in any event for the fifteen (15) Business Days prior to the Closing), any and all information, books and records, or access to employees or officers as Purchaser may reasonably request in connection with Purchaser confirming the compliance by TWG and TWG Re and each of their respective Subsidiaries with the obligations set forth in Section 5.01; provided, however, that each either party shall not be required hereto may restrict the foregoing access to permit any inspection or other accessthe extent that, or to disclose any informationin such Person’s reasonable judgment, that in the reasonable judgment of such party would: (i) providing such access could reasonably result in the disclosure of any trade secrets or could reasonably violate any obligation of such its obligations to any third party with respect to confidentiality or privacy; if such Person shall have used all reasonable efforts to obtain the consent of such third party to such access, (ii) jeopardize protections afforded any Law applicable to such Person may require such Person or its Subsidiaries to preclude the other party under the attorney-client privilege, the attorney work product doctrine and its representatives from gaining access to any properties or any other applicable privilege; information or (iii) violate any Legal Requirementsuch access could such interfere unreasonably with the business or day-to-day operations of TWG, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such informationSubsidiaries or TWG Re or Purchaser or its Subsidiaries. Each party shall use commercially reasonable security measures to access the systems and hereto will hold any such information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject that is non-public in confidence to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinextent required by, and in accordance with, Section 5.20.
(b) To Upon reasonable prior notice, each of Purchaser and the extent that any Surviving Company shall (and shall cause its respective Subsidiaries to) afford to the TPG Shareholders and their Representatives reasonable access during normal business hours, to all books and records, for the purpose of preparing such TPG Shareholder’s Tax Returns or other similar or related Tax purposes. Each of Purchaser and the Surviving Company shall (and shall cause its respective Subsidiaries to) furnish as promptly as reasonably practicable to the TPG Shareholders and its Representatives, consistent with its legal obligations, all other information concerning the preparation of the information TPG Shareholder’s Tax Returns or material furnished pursuant to this Agreement other related Tax purposes as such TPG Shareholder may include material subject to the 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 the joint defense doctrinereasonably request.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Assurant Inc)
Access. (a) Upon reasonable Prior to the Closing, the Company will, and shall cause its Affiliates to, permit Parent and its representatives (including legal counsel, accountants and prospective Lenders) to have, upon prior written notice, each reasonable access during normal business hours, in compliance with applicable Law and in a manner so as not to (i) unreasonably interfere with the normal business operations of DISH the Acquired Companies, to the premises, management, books, records, Contracts and EchoStar documents of or pertaining to the Acquired Companies or the Global Marine Business or (ii) impose any material costs on the Acquired Companies; provided, that the Company shall not be required to afford such access or furnish such copies or other information if such disclosure would reasonably be expected to result in the loss of attorney-client privilege, or trade secret protection held by the Acquired Companies or violate confidentiality obligations owing to third parties; provided, further that the Company shall, and shall cause each of their respective Subsidiaries its Affiliates to, afford use commercially reasonable efforts to provide the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during access or information sought in a manner that does not jeopardize such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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, trade secret protection or confidentiality obligations. None of the attorney work product doctrine Company 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 (iii) such party shall inform the other party of the nature Securityholders (including the Representative) makes any representation or warranty as to the accuracy of the any information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives (if any) provided pursuant to this Section 4.8(a6.5(a), and neither Parent nor any Merger Sub may rely on the accuracy of any such information, in each case other than as expressly set forth in the Company’s or the Blockers’ representations and warranties contained in Article IV. Notwithstanding the foregoing, in no event shall Parent or any of its representatives have any right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies. All requests for information made pursuant to this Section 6.5(a) shall be subject directed to the chief executive officer or chief financial officer of the Company. Parent shall comply with, and shall cause its representatives to comply with, all of its and their obligations under the Confidentiality Agreement so long as it satisfies with respect to the definition of “Evaluation Material” contained thereininformation disclosed pursuant to this Section 6.5(a), which agreement will remain in full force and effect.
(b) To the extent that any Within ten (10) Business Days of the information or material furnished pursuant to date of this Agreement may include material subject Agreement, the Company and Parent shall develop a mutually agreeable work plan relating to the attorney-client privilege, work product doctrine or any other applicable privilege, preparation of audited and pro forma financial statements contemplated by the parties understand TSA and agree that they have a commonality of interest with respect shall use reasonable best efforts to such matters and it is their desire, intention and mutual understanding that implement the sharing elements of such material is not intended to, and shall not, waive or diminish work plan in any way the confidentiality of accordance with 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 doctrineplan.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Brunswick Corp)
Access. (a) Upon reasonable noticePrior to the Closing, each of DISH and EchoStar the Territory shall, and shall cause each its Subsidiaries to, give LuxCo, BermudaCo and their respective employees, counsel, accountants, investment bankers and other representatives and advisors (collectively, "Representatives") full access upon reasonable advance notice and during normal business hours to all offices and other facilities used in the Consulting Business and to all books, records, agreements, documents, information, personnel, data and files to the extent relating to the Consulting Business, and during such period shall furnish to the Representatives any information concerning the Consulting Business as they may reasonably request (including without limitation, to the extent practicable, by electronic means); provided that the Territory shall not be required to disclose such information if such disclosure would violate applicable law or contract; and, provided further, that the Territory shall use reasonable best efforts to obtain the required consents necessary to permit the timely disclosure of such information.
(b) After the Closing and until the seven year anniversary of the Closing Date, the Territory will, and will cause its Subsidiaries to, give LuxCo, BermudaCo and their respective Subsidiaries to, afford to the other party and the other party’s their Representatives reasonable access, during normal business hours and upon prior notice throughout reasonable notice, to all books, documents, information, data, files and other records relating to (i) the period operation of the Consulting Business prior to the Effective TimeClosing, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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; Acquired Assets or (iii) violate any Legal Requirementthe Assumed Liabilities, including any Covid-19 Measureand to furnish copies thereof, which LuxCo, BermudaCo or their respective Subsidiaries or their Representatives reasonably request, at the Territory's cost and expense if such copies are reasonably required to operate the Consulting Business on a stand-alone basis, and otherwise at LuxCo's expense, including, without limitation, in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving or relating to (w) the IPO and rights or obligations of LuxCo or Sub under the Transaction Agreements, (x) the operation of the Consulting Business, (y) the Acquired Assets or (z) the Assumed Liabilities, and the Territory shall furnish reasonable assistance (at LuxCo's expense) (including, without limitation, access to personnel) to LuxCo, BermudaCo and their respective Subsidiaries and their Representatives in connection with such claims and other proceedings; provided that in each case of clauses (i), (ii) and (iii) such party access shall inform be granted until the other party later of the nature seventh anniversary of the information being withheld, Closing Date and shall use its reasonable best efforts to make alternative arrangements the expiration date of the applicable statute of limitations with respect to such informationtax matters. Each party The Territory shall use commercially permit, promptly upon reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilegerequest, work product doctrine or any other applicable privilegeLuxCo, 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar BermudaCo or any of their respective Representatives Subsidiaries to use original copies of any such records for purposes of litigation, provided such records are promptly returned to the Territory following such use. The Territory shall affect or be deemed not, and shall not permit any of its Subsidiaries to, destroy any such records prior to affectthe expiration of such access period without providing LuxCo with written notice detailing the contents of such records, modify or waive and providing LuxCo with the representations and warranties of EchoStar or DISHopportunity to obtain such records, respectively, set forth in this Agreementat least 120 days prior to the destruction thereof.
Appears in 1 contract
Sources: Rollup Agreement (PWCC LTD)
Access. (a) Upon reasonable noticeSubject to compliance with applicable Laws, each of DISH and EchoStar shall, and the Company shall cause each of their respective Subsidiaries to, afford to Parent and to its officers, employees, accountants, consultants, legal counsel, financial advisors and agents and other representatives acting on Parent’s behalf in connection with the other party and the other party’s Representatives transactions contemplated hereby (collectively, “Parent Representatives”) reasonable access, access during normal business hours upon prior notice hours, throughout the period prior to the earlier of the Effective TimeTime and the Termination Date, to their respective personnel, the Company’s and its Subsidiaries’ properties, Contractscontracts, filings with Governmental Entities and commitments, books and records andrecords, during Tax Returns and workpapers, other than any such period, each of DISH and EchoStar shall furnish promptly matters that relate to the negotiation and execution of this Agreement, or to transactions potentially competing with or alternative to the transactions contemplated by this Agreement or proposals from other party all available information concerning parties relating to any competing or alternative transactions. The Company and its business as DISH Subsidiaries shall keep Parent reasonably apprised of the status of any material Tax matters that do not arise in the Company’s or EchoStarany of its Subsidiary’s ordinary course of business. The foregoing notwithstanding, as the case may be, may reasonably request; provided, however, that each party Company shall not be required to permit afford such access if it would unreasonably disrupt the operations of the Company or any inspection of its Subsidiaries, would cause a violation of any agreement to which the Company or other accessany of its Subsidiaries is a party, or to disclose any information, that would in the reasonable judgment of the Company (after consultation with legal counsel) likely result in a loss of privilege or trade secret protection to the Company or any of its Subsidiaries or would constitute a violation of any applicable Law, and in any 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 privilegeevent, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall parties hereto will use its their reasonable best efforts to make alternative appropriate substitute access arrangements with respect to in a manner that does not result in such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinloss or violation.
(b) To the extent Parent hereby agrees that any of the all information or material furnished pursuant provided to this Agreement may include material subject to the attorney-client privilege, work product doctrine it or any other applicable privilege, the parties understand and agree that they have a commonality of interest Parent Representatives in connection 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 the joint defense doctrine.
(c) No exchange consummation of information or investigation by DISH or EchoStar or any of their respective Representatives the transactions contemplated hereby shall affect or be deemed to affectbe Confidential Information (as defined in the Confidentiality Agreements and subject to the exclusions contained in the Confidentiality Agreements), modify or waive as such term is used in, and shall be treated in accordance with, (i) the representations confidentiality agreement, dated as of September 11, 2012, between the Company and warranties ▇▇▇▇ Capital Partners, LLC and (ii) the confidentiality agreement, dated as of EchoStar or DISHFebruary 19, respectively2013, set forth in this Agreementbetween the Company and Golden Gate Private Equity, Inc. (collectively, the “Confidentiality Agreements”).
Appears in 1 contract
Sources: Merger Agreement (BMC Software Inc)
Access. (a) Upon During the period commencing on the Effective Date and continuing through the Closing Date, Seller will permit Parent and Buyer to make a full and complete investigation of the Transferred Assets and the Business and to receive all information of Seller relating to the Transferred Assets or reasonably related to Seller’s conduct of the Business. In addition, to the maximum extent permitted by applicable laws and regulations, Seller will provide Parent and Buyer access to the employee files of the Designated Employees or Employees that would potentially be Designated Employees. Without limitation on this right, Seller, upon reasonable noticeprior notice from Parent or Buyer to Seller, will (i) afford to Parent and Buyer and their representatives, at all reasonable times during normal business hours, full and complete access to the Transferred Assets and Seller’s personnel, professional advisors, properties, contracts, files, Books and Records, and other documents and data; (ii) furnish Parent or Buyer and its representatives with copies of all such Transferred Contracts, Books and Records, and other existing documents and data as Parent or Buyer may reasonably request; and (iii) furnish Parent or Buyer and their representatives with such additional financial (including Tax Returns and supporting documentation), operating, and other data and information as Parent or Buyer may reasonably request, in each case relating to the Business. Seller shall maintain and make available the information and records specified in this Section 5.2 in the ordinary course of Seller’s business and document retention policies, as if the transactions contemplated by this Agreement had not occurred. No information or knowledge obtained in any investigation pursuant to this Section 5.2 shall affect or be deemed to modify any representation or warranty contained herein or the conditions to the obligations of the Parties hereto to consummate the transactions contemplated hereby.
(b) During the period commencing on the Effective Date and continuing through the Closing Date, each of DISH and EchoStar shall, and Party shall cause each of their respective Subsidiaries to, afford to provide the other party Party (at such other Party’s expense) with such reasonable assistance, including the provision of available relevant records or other information and reasonable access to and cooperation of any personnel within their employ, as may be reasonably requested by either of them in connection with the other party’s Representatives preparation of any financial statement or Tax Return, or any audit or examination by any taxing authority, or any judicial or administrative proceeding relating to liability for Taxes.
(c) For two (2) years after the Closing Date, Seller shall give Parent and Buyer reasonable access, during normal business hours upon prior notice throughout the period prior hours, to all books, records and files requested by Parent and Buyer that are reasonably necessary in order for Parent and Buyer to respond to any third party or governmental inquiries, investigations, claims or audits related to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to Transferred Assets or the other party all available information concerning its business as DISH or EchoStar, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinBusiness.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Advanced Energy Industries Inc)
Access. (a) Upon reasonable noticeFor purposes of furthering the Transactions, each during the period from the date of DISH this Agreement until the Effective Time or, if earlier, the termination of this Agreement in accordance with its terms, the Company shall (i) afford Parent and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s its Representatives reasonable access, access during normal business hours upon prior reasonable advance notice throughout the period prior to the Effective TimeCompany, to their respective personnelits and its Subsidiaries' officers, employees, properties, Contractscontracts, filings with Governmental Entities and commitments, books and records andand any report, during such period, each of DISH and EchoStar shall furnish promptly schedule or other document filed or received by it pursuant to the requirements of applicable Laws (other party all available than information concerning its business as DISH the value of the Company or EchoStar, as relating to the case may be, may reasonably request; provided, however, that each party shall not be required process leading to permit the negotiation and execution of this Agreement and any inspection communications relating to any Company Acquisition Proposal or other access, or to disclose any information, that in the reasonable judgment of such party would: (iCompany Competing Transaction) violate any obligation of such party with respect to confidentiality or privacy; and (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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect available to such information. Each party shall use commercially reasonable security measures 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 access the systems and information extent reasonably requested by Parent in order to discuss the affairs of the other partyCompany and its Subsidiaries. During such period, the Company shall, and shall cause its Subsidiaries to, without limitation to the preceding obligations, make available to Parent a copy of any written communication (and a summary of any material oral communication) received from the FDA or similar Governmental Authority promptly after receipt of such communication. All confidential information obtained by each party and its Representatives access pursuant to this Section 4.8(a5.3(a) shall be subject (i) conducted in such a manner as not to interfere unreasonably with the Confidentiality Agreement so long as it satisfies normal operations of the definition Company or any of “Evaluation Material” contained thereinits Subsidiaries and (ii) coordinated through the Chief Executive Officer of the Company or a designee thereof.
(b) To Notwithstanding anything to the extent that contrary contained in this Section 5.3, 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 reasonable judgment of the information or material furnished pursuant to this Agreement may include material subject to Company's outside legal counsel, (i) jeopardize the attorney-client privilege, work product doctrine privilege of the Company or any other of its Subsidiaries or (ii) conflict with any (A) Law applicable privilegeto the Company or any of its Subsidiaries or the assets, or operation of the parties understand business, of the Company or any of its Subsidiaries or (B) Material Company Contract to which the Company or any of its Subsidiaries is party or by which any of their assets or properties are bound; provided, however, that in such instances the Company shall inform Parent of the general nature of the information being withheld and agree the basis for withholding and, upon Parent's request, reasonably cooperate with Parent to provide such information, in whole or in part, in a manner 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 would not intended to, and shall not, waive or diminish result in any way of the confidentiality of outcomes described in the foregoing clauses (i) and (ii), including using commercially reasonable efforts to seek consent from the applicable third party to any such material or its continued protection Material Company Contract under the attorney-client privilege, work product doctrine or any other applicable privilege. All such information that which disclosure 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 doctrineprohibited.
(c) No exchange of information or investigation by DISH Parent or EchoStar or any of their respective its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, the Company set forth in this Agreement.
(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 Confidentiality Agreement, dated as of May 8, 2014, between the Company and Parent (the "Confidentiality Agreement"), which shall continue in full force and effect in accordance with its terms.
Appears in 1 contract
Access. From the Effective Date until the earlier of the Closing or the termination of this Agreement pursuant to Section 11.01, subject to suitable protections to ensure compliance with all applicable antitrust and competition Laws, the Buyer or, in the Sellers’ reasonable discretion where necessary to comply with such applicable antitrust and competition Laws, the Buyer’s external legal counsel on an external counsel only basis, shall (a) Upon have access upon reasonable advance written notice, each of DISH and EchoStar 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 prior hours, to the Effective Timeoffices, to their respective employees (including for the purpose of hiring interviews), officers, representatives, and other personnel, properties, ContractsBusiness Purchased Assets, filings with Governmental Entities and books and records and, during such period, each of DISH the Business and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as Sellers and 3D Korea that the case may be, Buyer may reasonably request; provided, however(b) be furnished by the Sellers with true, correct and complete copies of such additional financial and operating data and other information relating to the Business or the Business Purchased Assets that is regularly prepared or received by the Sellers or 3D Korea, including any performance reports for the Business, in each party shall not be required case to permit any inspection or other access, or to disclose any information, that the extent in the possession of or reasonably available to the Sellers or 3D Korea, but without any representation or warranty by the Sellers and without recourse to the Sellers, and (c) be furnished by the Sellers reasonable judgment access to the employees of such party would: the Business and any information reasonably required for filing or obtaining any Required Consents. The Buyer’s access under this Section 6.02 shall be exercised in a manner as to not unreasonably interfere with the Business or any other businesses of the Sellers or 3D Korea. Without limiting the foregoing, (i) violate the Sellers and their Affiliates shall have the right to cause any obligation of their employees, agents or representatives to accompany the Buyer during the course of any such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under access on the attorney-client privilege, the attorney work product doctrine or premises of any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i)Leased Real Property, (ii) the Buyer shall observe and comply with any safety, security and other rules and regulations imposed by the owners, lessors or licensors of the respective facilities, or which are reasonably imposed by the Sellers, while on the premises of any Leased Real Property, (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information notwithstanding any of the other party. All confidential information obtained by each party and its Representatives pursuant to terms of this Section 4.8(a) 6.02, access to any Leased Real Property shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(band may be prohibited by) To the extent that any all of the information or material furnished pursuant to this Agreement may include material subject to terms of the attorney-client privilege, work product doctrine or any other Assumed Lease and the Permitted Liens 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 toLeased Real Property, and (iv) all access, inspections and other activities of the Buyer shall notbe performed at the Buyer’s sole cost and expense, waive or diminish in any way the confidentiality of such material or its continued protection under the attorneya good and workmanlike manner, lien-client privilegefree, work product doctrine or any other and in compliance with all applicable privilege. All such information that is entitled to protection under the attorney-client privilegelaws, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement rules and the joint defense doctrineregulations.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable noticeAfter the Closing and until the seven year anniversary of the Closing Date, each of DISH and EchoStar shallLuxCo will, and shall will cause each of their respective its Subsidiaries to, afford to give the other party Territory, its Subsidiaries and the other party’s their Representatives reasonable access, during normal business hours and upon prior notice throughout reasonable notice, to all books, documents, information, data, files and other records relating to (i) the period prior operation of the Consulting Business before the Closing, (ii) the Acquired Assets or (iii) the Assumed Liabilities, and to furnish copies thereof, which the Territory, its Subsidiaries or their Representatives reasonably request, including, without limitation, in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving (x) the operation of the Consulting Business, (y) the Acquired Assets or (z) the Assumed Liabilities, and LuxCo shall furnish reasonable assistance (at the Territory's expense) (including, without limitation, access to personnel) to the Effective Time, to Territory and its Subsidiaries and their respective personnel, properties, Contracts, filings Representatives in connection with Governmental Entities such claims and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestproceedings; provided, however, provided that each party LuxCo shall not be required to permit any inspection disclose such information if such disclosure would 66 violate applicable law or other accesscontract; and, or to disclose any informationprovided further, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and LuxCo shall use its reasonable best efforts to make alternative arrangements with respect obtain the required consents necessary to permit the timely disclosure of such information. Each party LuxCo shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 tonot, and shall notnot permit any of its Subsidiaries to, waive or diminish in destroy any way such records prior to the confidentiality seventh anniversary of the Closing Date without providing the Territory with notice detailing the contents of such material or its continued protection under records, and providing the attorney-client privilegeTerritory with the opportunity to obtain such records, work product doctrine or any other applicable privilegeat least 120 days prior to the destruction thereof. All such information that is entitled to protection under LuxCo shall permit, promptly upon reasonable request, 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) No exchange of information or investigation by DISH or EchoStar Territory or any of their respective Representatives shall affect or be deemed its Subsidiaries to affectuse original copies of any such records for purposes of litigation, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreementprovided such records are promptly returned to LuxCo following such use.
Appears in 1 contract
Sources: Rollup Agreement (PWCC LTD)
Access. (a) Upon reasonable notice, each of DISH and EchoStar Purchaser shall, and shall cause each of their respective Subsidiaries the other Providers to, afford make the TSA Records and facilities used to provide the other party Transition Services available to each Recipient and the auditors or other party’s Representatives reasonable accessthereof, and in any event to any Governmental Authority, during normal business hours upon on reasonable prior notice throughout the period prior notice, for review, inspection, examination and, at Recipient’s expense, reproduction, provided that access to such facilities shall be limited to the Effective Timepurposes of verifying compliance with this Agreement, reviewing security, disaster recovery and backup procedures, complying with Applicable Law, or such other purpose as may be agreed by the parties. Access to their respective personnelsuch TSA Records and facilities shall be exercised (a) by a Recipient and its authorized Representatives in a manner that shall not interfere unreasonably with the normal operations of any Provider and (b) in the case of an audit of such records by or on behalf of a Recipient, propertiesnot more than once in any twelve (12)-month period unless otherwise required by Applicable Law or requested by a Governmental Authority or for good cause. In connection with such review of TSA Records and facilities, Contracts, filings with Governmental Entities and books and records and, during such periodupon reasonable prior notice, each of DISH and EchoStar Recipient shall furnish promptly have the right to discuss matters relating to the other party all available information concerning its TSA Records and facilities with the Personnel of the applicable Provider who are maintaining the TSA Records and facilities and providing the Transition Services during regular business as DISH hours and without undue disruption of the normal operations of such Provider. No Recipient shall have access to any TSA Records or EchoStarfacilities, and no Provider shall be required to provide access or disclose information, when such access or disclosure would constitute privileged attorney-client communications or attorney work product and the transfer of which, or the provision of access to which, as the case may bereasonably determined by such party’s counsel, may reasonably requestwould constitute a waiver of any such privilege; provided, however, that each that, in order to facilitate access to such information the parties shall or shall cause their Affiliates to enter into a customary joint defense agreement or common interest agreement with the requesting party shall not be required to permit any inspection or other access, one or to disclose any information, that in the reasonable judgment more of such party would: (i) violate any obligation of such party its Affiliates with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party any information requested to be provided. Recipient’s rights 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) 7.2 shall be subject to the Confidentiality Agreement continue for so long as it satisfies the definition of “Evaluation Material” contained thereinTSA Records are required to be maintained by Provider under Section 7.1.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable notice, and except as may otherwise be required by applicable law, the Company and Parent each of DISH and EchoStar shall, shall (and shall cause each of their respective its Subsidiaries to) afford the other's officers, afford to the employees, counsel, accountants and other party and the other party’s Representatives reasonable authorized representatives ("REPRESENTATIVES") access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably request; providedbe requested, howeverPROVIDED that no investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by the Company, Parent or Merger Sub, and PROVIDED, FURTHER. that each party the foregoing shall not be required require the Company or Parent to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) the Company or Parent, as the case may be, would result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality if the Company or privacy; (ii) jeopardize protections afforded such party under Parent, as the attorney-client privilegecase may be, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its have used reasonable best efforts to make alternative arrangements with respect obtain the consent of such third party to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyinspection or disclosure. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) shall be subject directed to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any an executive officer of the information Company or material furnished pursuant to this Agreement Parent, as the case may include material subject to be, or such Person as may be designated by either of its officers, as the 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 privilegecase may be. All such information shall be governed by the terms of the Confidentiality Agreements. Furthermore with respect to any and all access to properties for environmental review and diligence purposes, Parent shall be granted access to any facility currently owned or operated by the Company to perform a Phase I assessment so long as such assessment is presumptively non-intrusive in nature, the site visits and discussions are performed in collaboration with the Director of Environmental Health and Safety or his designee, schedule and times for such assessments are mutually agreed upon in advance, that is entitled Parent or its contractors will be accompanied by the Company representatives at all times, and no notification or discussions of environmental matters are initiated with governmental agencies or third parties without the prior notice to protection and agreement by the Company. The Phase I reports shall remain the property of Parent. However if Parent, based upon the conclusions in the Phase I report, desires to perform intrusive testing, Parent shall present such request and the supporting written justification to the Company and both parties shall use reasonable best efforts to mutually agree upon the need, scope, and nature of any such intrusive investigation. Any intrusive investigation shall be under the attorney-client privilegesupervision of the Company and all results of any intrusive investigation shall be immediately shared with the Company. Any and all costs of any investigation, work product doctrine or including any other applicable privilege intrusive testing, shall remain entitled to such protection under these privileges, this Agreement and the joint defense doctrinebe borne entirely by Parent.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Augat Inc)
Access. (a) Upon Between the date of this Agreement and the Closing Date, Seller shall afford to Purchaser and its authorized agents and representatives access upon reasonable notice, each of DISH and EchoStar 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 prior hours, to the Effective Timeemployees, vendors, service providers and properties of Seller and all the books, records, contracts, documents and other information in each case relating to their respective personnelthe Branch Business, propertiesthe Assumed Liabilities, Contractsthe Assets or the Employees, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to Purchaser and its authorized agents and representatives such additional information and access relating to the other party all available information concerning its business Branch Business, the Assumed Liabilities, the Assets and the Employees as DISH or EchoStar, as the case may be, Purchaser may reasonably request; provided, howeverthat notwithstanding the provision of information or investigation by any party, that each no party shall be deemed to make any representation or warranty regarding any matter except as expressly set forth in this Agreement. Notwithstanding the foregoing, Seller shall not be required to permit provide any inspection or other accessinformation that, or based on the advice of counsel, it may not provide to disclose any informationPurchaser by reason of Applicable Law, 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 constitutes information protected by attorney-/client privilege, or that it is required to keep confidential by reason of contract or agreement with third parties. Seller shall cause its personnel to provide reasonable assistance to Purchaser in Purchaser’s investigation of matters relating to the attorney work product doctrine or any other applicable privilegeBranch Business, the Assets, the Assumed Liabilities and the Employees; or provided such assistance does not unreasonably interfere with such personnel’s job duties. Further, Purchaser and its authorized agents and representatives (iiiincluding its environmental consultants) violate any Legal Requirementshall be given access to the Owned Real Property, the Ground Leased Property and the Leased Real Property and Seller’s data processing facilities for all reasonable purposes, including any Covid-19 Measurethe undertaking of environmental assessments; provided provided, however, that Purchaser’s investigation shall be conducted in each case of clauses (i)a manner which does not unreasonably interfere with Seller’s normal operations, (ii) and (iii) such party shall inform the other party of the nature of the information being withheldcustomers, and employee relations and no intrusive sampling or other intrusive environmental investigations shall use be conducted without Seller’s prior consent, which shall not be unreasonably delayed, conditioned or withheld. Prior to the Closing, all information furnished by Seller to Purchaser or its reasonable best efforts agents or representatives pursuant hereto or by Purchaser to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and Seller or its Representatives pursuant to this Section 4.8(a) agents or representatives shall be subject to the Confidentiality Agreement so long as it satisfies Agreement, June 15, 2009, by and between Parent and National Australia Bank (the definition “Confidentiality Agreement”). No investigation made by Purchaser or its agents or representatives shall affect the representations and warranties of “Evaluation Material” contained thereinSeller hereunder.
(b) To Between the extent that any date of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrineClosing Date, Seller shall, in each case in connection with Seller’s review and approval of any Loans or proposed Loans in excess of $250,000 (i) deliver to Purchaser’s designee copies of all materials provided to Seller’s employees (as well as provide Purchaser access to all information relating to the relevant customer held by Seller), (ii) include Purchaser’s designee on all correspondence and (iii) to the extent reasonably practicable, allow Purchaser to act as an observer (either in person or by other means of communication) at any formal credit meetings of Seller’s employees.
(c) No exchange With respect to the Branch Deposits, between the date of information or investigation this Agreement and the Closing Date, Seller shall provide Purchaser:
(i) on a weekly basis on the Tuesday following the end of each week, a list of (A) Branch Deposits overdrawn by DISH or EchoStar or more than $25,000, (B) any Loan overdraft lines of their respective Representatives credit greater than thirty (30) days past due, (C) any new Branch Deposits opened and (D) any Branch Deposits closed in each case during such week; and
(ii) on a monthly basis no later than five (5) Business Days following the end of each month, an updated Branch Account Report as of the last day of the immediately preceding month.
(d) With respect to the Loans, between the date of this Agreement and the Closing Date, Seller shall affect or be deemed provide to affectPurchaser on a monthly basis no later than ten (10) Business Days following the end of any given month, modify or waive a report detailing (i) any changes in the representations and warranties of EchoStar or DISH, respectively, criteria regarding the Loans set forth in this AgreementSection 1.1(a)(ii), (ii) any deficiency or shortfall in the escrow account for any Loan, (iii) all reporting produced in relation to Seller’s participations in Old Republic Loans, detailing any changes to the portfolio of such Old Republic Loans and (iv) details of all letters of credit issued by the Branch Offices, including any changes in amounts outstanding under such letters of credit, in each case during the preceding month.
Appears in 1 contract
Access. During the period from the date hereof and continuing until the earlier of the termination of this Agreement or the Closing Date, the Company and the Sellers will permit representatives of Buyer (aincluding legal counsel and accountants) Upon reasonable to have, upon prior written notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, access during normal business hours upon prior notice throughout and under reasonable circumstances, and in a manner so as not to interfere with the period prior normal business operations of the Company or any Newly Granted Permittee, to the Effective Timepremises, to their respective personnel, propertiesbooks, records (including Tax records (but excluding income Tax Returns of any federal consolidated (and state combined or unitary) group of which the Company or any Newly Granted Permittee is a member and limited with respect to all other Tax Returns and correspondence with accountants to the portions of such Tax Returns and correspondence with accountants that specifically relate to the Company or the applicable Newly Granted Permittee)), Material Contracts, filings with Governmental Entities and books and records and, during such period, each documents of DISH and EchoStar shall furnish promptly or pertaining to the other party Company or any Newly Granted Permittee. Neither Buyer nor any of its Representatives will contact any employee, customer, supplier or landlord of the Company or any Newly Granted Permittee without the prior written consent of the Sellers’ Representative. Notwithstanding anything to the contrary in this Section 6.4, the Company and the Sellers will not be required to provide information that (a) would violate applicable Law or (b) constitutes information protected by the attorney/client and/or attorney work product privilege. Buyer will comply with, and will cause its representatives to comply with, all available information concerning of its business as DISH or EchoStarobligations under the confidentiality agreement previously signed with respect to the Transaction on March 8, as 2019 (the case may be“Confidentiality Agreement”), may reasonably requestbetween the Company and Buyer with respect to the terms and conditions of this Agreement and the Transaction and the Confidential Information of the Company and the Newly Granted Permittees disclosed pursuant to this Section 6.4, which agreement will remain in full force and effect and survive any termination of this Agreement in accordance with the terms of the Confidentiality Agreement relating to any Sellers’ Confidential Material; provided, however, that each party shall not be required to permit any inspection obligations 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 (iii) such party shall inform the other party restrictions of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to Buyer under the Confidentiality Agreement so long relating to Company Confidential Material will be null and void as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrineClosing Date.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Equity Purchase Agreement
Access. (a) Upon reasonable noticeBuyer, each of DISH and EchoStar shallfollowing the Closing, and subject to Applicable Law (including Patient Privacy Requirements), the Confidentiality Agreement, any other applicable confidentiality provisions, shall cause each of their respective Subsidiaries to, afford give to the other party Debtors and the other party’s their Representatives reasonable access, access during normal business hours upon prior notice throughout the period prior to the Effective Timeoffices, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records andrelating to Debtors, during such periodtheir Business and operations for any and all periods prior to or including the Closing Date as the Debtors and their Representatives may reasonably request and to make copies of the same in connection with (a) the preparation of Tax returns or information returns, each of DISH and EchoStar shall furnish promptly (b) reports or other obligations by the Debtors to Governmental Authorities, (c) with respect to the other party all available information concerning its business as DISH administration of the Bankruptcy Cases, (d) pursuing, prosecuting, or EchoStarcommencing litigation on Avoidance Actions, as the case may be(e) objecting to proofs of claims or administrative expense claims, may reasonably requestand (f) any final determination of any audit or examination, Proceeding, or determination; 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 Buyer to confidentiality or privacy; (ii) jeopardize protections afforded such party under so accommodate 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) Debtors and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its their Representatives pursuant to this Section 4.8(a) shall be subject to (A) reasonable notice from the Confidentiality Agreement Debtors of any request for information, (B) the Debtors’ agreement to reimburse Buyer its out-of-pocket expenses of such accommodation, (C) reasonable limitations on frequency and duration of the Debtors’ requests, (D) non-interference with the ordinary conduct of business of Buyer, and (E) the right of Buyer to refuse any request for information that would result in a loss of privilege or a breach of any confidentiality obligation of Buyer. Buyer shall preserve all such books and records for a period of seven (7) years after the Closing or such longer period as may be required by Patient Privacy Requirements; provided, however, that Buyer shall have the right at any time after the second anniversary of the Closing Date to request in writing that the Debtors (so long as it satisfies the definition of “Evaluation Material” contained therein.
Debtors are in existence) take any such records and, if they do not agree to take such records within ninety (b90) To the extent that any Business Days after receipt of the information or material furnished pursuant to this Agreement request, Buyer may include material dispose of such records, subject to the 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 the joint defense doctrinePatient Privacy Requirements.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Foundation Healthcare, Inc.)
Access. (a) Upon reasonable notice, each of DISH and EchoStar shall, the Company shall (and shall cause each of their respective its Subsidiaries to) afford Parent's officers, afford to the employees, counsel, accountants and other party and the other party’s Representatives authorized representatives ("Representatives") reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnelthe Company's executive officers, accountants, properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party Representatives all available information concerning its business business, properties, results of operations and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested, provided that no investigation pursuant to this Section shall affect or be deemed to modify any representation or warranty made by the Company, and provided further, however, that the Company may restrict the foregoing access to the extent that (A) in the reasonable judgment of the Company, any law, treaty, rule or regulation of any Governmental Entity applicable to the Company requires the Company or its subsidiaries to restrict or prohibit access to any such properties or information, (B) in the reasonable judgment of the Company, the information is subject to confidentiality obligations to a third party, (C) such disclosure would result in disclosure of any trade secrets of third parties, or (D) disclosure of any such information or document could result in the loss of attorney client privilege; 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 this clause (D), the Company and/or its counsel shall use their reasonable efforts to enter into such joint defense agreements or privacy; (ii) jeopardize protections afforded such party under other arrangements, as appropriate, so as to avoid the attorney-loss of 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential requests for information obtained by each party and its Representatives access made pursuant to this Section 4.8(a) shall be subject directed to an executive officer of the Company or such Person as may be designated by its officers. The parties will hold any such information which is nonpublic in confidence pursuant to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any terms of the information confidentiality agreement, dated October 3, 2003, between the Company and Parent (the "Confidentiality Agreement"). Nothing in this Section 6.6 will modify or material furnished pursuant alter the provisions of the Confidentiality Agreement; provided, however, that, notwithstanding anything to the contrary contained herein or in the Confidentiality Agreement, any confidentiality obligations set forth herein or in any other agreement to which the parties hereto are parties or by which they are bound, including the Confidentiality Agreement, as they relate to the transactions contemplated by this Agreement may include material subject shall not apply to the attorneypurported or claimed Federal, state, or local income tax treatment of the transactions (the "Tax Treatment") or to any fact that may be relevant to understanding the purported or claimed Federal, state, or local income tax treatment of the transactions (the "Tax Structure"), and each party hereto (and any employee, representative, or agent of any party hereto) may disclose to any and all persons, without limitation of any kind, the Tax Treatment and Tax Structure of the transactions contemplated by this Agreement and any materials of any kind (including any tax opinions or other tax analyses) that relate to the Tax Treatment or Tax Structure. In addition, each party hereto acknowledges that it has no proprietary or exclusive rights to any tax matter or tax idea related to the transactions contemplated by this Agreement. The preceding sentence is intended to ensure that the transactions contemplated by this Agreement shall not be treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation Section 1.6011-client privilege, work product doctrine 4(b)(3) or any other applicable privilegesuccessor provision of the Treasury Regulations promulgated under Section 6011 of the Code, 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 toor any similar state or local provisions, and shall not, waive or diminish be construed in any way the confidentiality of a manner consistent with 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 doctrinepurpose.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. Subject to the terms of this Section 10.1, Landlord and Landlord’s agents, representatives, contractors and employees, the Condominium Board, the Condominium Board’s agents, representatives, contractors and employees and the utility companies servicing the Building may enter the Premises at reasonable times upon reasonable prior notice to Tenant (awhich notice may be given verbally to the person employed by Tenant with whom Landlord’s representative ordinarily discusses matters relating to the Premises) Upon reasonable noticeto (i) examine the Premises, each (ii) show the Premises to prospective tenants during the last twelve (12) months of DISH and EchoStar shallthe Term, (iii) show the Premises to prospective purchasers or master lessees of Landlord’s interest in the Real Property, (iv) show the Premises to Mortgagees or Lessors (or prospective Mortgagees or Lessors), (v) gain access to Reserved Areas, or (vi) make repairs, alterations, improvements, additions or restorations that (I) Landlord is required to make pursuant to the terms of this Lease, or (II) are reasonably necessary in connection with the maintenance, repair, management or operation of the Real Property (any such party requiring such access being referred to herein as an “Access Party”; any Access Party’s entry upon the Premises to perform such repairs, alterations, improvements, additions or restorations being referred to herein as a “Work Access”). An Access Party shall not be required to give Tenant advance notice of the entry by such Access Party into the Premises as contemplated by this Section 10.1 to the extent necessary by reason of the occurrence of an emergency, but Landlord shall endeavor in good faith to do so. An Access Party, in connection with a Work Access, shall have the right to bring into the Premises, and store in the Premises in a reasonable manner for the duration of the Work Access, the materials and tools that such Access Party reasonably requires to perform the applicable repair, alteration, improvement, addition or restoration. An Access Party shall cause each have no liability to Tenant for any loss sustained by Tenant by reason of their respective Subsidiaries to, afford to such Access Party’s entry upon the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestPremises; 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilegeSection 15.3 hereof, 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 Landlord shall remain entitled liable to Tenant for personal injury or property damage that derives from Landlord’s negligence or wilful misconduct in connection with any such protection under these privileges, this Agreement and entry upon the joint defense doctrinePremises.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Loan Agreement (Alexanders Inc)
Access. Between the Date of this Agreement and the ------ Closing Date:
(a) Upon reasonable noticeThe Company shall, and the Company shall cause the Company Subsidiaries and each of DISH their respective Representatives to, (i) afford the Acquiror and EchoStar its Representatives and the Acquiror's prospective lenders and their Representatives (collectively, the "Acquiror Advisors") access to the Company's and each Company Subsidiary's personnel, customers, assets, premises, properties, Contracts, books and records, and other documents and data during normal business hours and at such other times as the parties may agree, (ii) furnish Acquiror and the Acquiror Advisors with copies of all such Contracts, books and records, and other existing documents and data as the Acquiror may reasonably request, (iii) furnish the Acquiror and the Acquiror Advisors with such additional financial, operating, and other data and information as the Acquiror may reasonably request and (iv) otherwise cooperate with any investigation by the Acquiror and the Acquiror's Advisors, and the Company and each Company Subsidiary shall authorize the Company Accountants to permit the Acquiror and the Acquiror Accountants to examine all accounting records and working papers pertaining to the Company Financial Statements. No investigation pursuant to this Section 5.3(a) shall affect or be deemed to modify any representation or warranty made by the Company. The foregoing shall not require the Company to permit or cause to permit any inspection, or to disclose or cause to disclose any information, that in the reasonable judgment of the Company is reasonably likely to result in the violation of any Law or Order or disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality if the Company shall have used reasonable efforts to obtain the consent of such third party to such inspection or disclosure. All requests for information made pursuant to this Section 5.3(a) shall be directed to an executive officer of the Company or such person as may be designated by such officer of the Company; and
(b) The Acquiror shall, and shall cause the Acquiror Subsidiaries and Related Persons and each of their respective Subsidiaries Representatives to, (i) afford the Company and its Representatives access to the other party Acquiror's and the other party’s Representatives reasonable accesseach Acquiror Subsidiary's personnel, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnelpremises, properties, Contracts, filings with Governmental Entities and books and records andrecords, during and other documents and data, (ii) furnish the Company and its Representatives with copies of all such periodContracts, each of DISH books and EchoStar shall furnish promptly to the records, and other party all available information concerning its business existing documents and data as DISH or EchoStar, as the case may be, they may reasonably request; provided, however(iii) afford the Company and its Representatives with such additional financial, that operating, and other data and information as the Company and its Representatives may reasonably request and (iv) otherwise cooperate with any investigation by the Company and its Representatives, and the Acquiror and each party Acquiror Subsidiary shall authorize the Acquiror's Accountants to permit the Company and the Company Accountants to examine all accounting records and working papers pertaining to the Acquiror Financial Statements. No investigation pursuant to this Section 5.3(b) shall affect or be deemed to modify any representation or warranty made by the Acquiror. The foregoing shall not be required require the Acquiror to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) the Acquiror is reasonably likely to result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under if 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 (iii) such party Acquiror shall inform the other party of the nature of the information being withheld, and shall use its have used reasonable best efforts to make alternative arrangements with respect obtain the consent of such third party to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyinspection or disclosure. All confidential information obtained by each party and its Representatives requests for permit made pursuant to this Section 4.8(a5.3(a) shall be subject directed to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any an executive officer of the information Acquiror or material furnished pursuant to this Agreement such person as may include material subject to the 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 be designated by 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 the joint defense doctrineofficer.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Acquisition Agreement (Vsource Inc)
Access. (a) Upon reasonable noticeFrom the date hereof until the earlier of the Closing and the termination of this Agreement, each of DISH and EchoStar shall, the Companies shall and shall cause each of their respective Subsidiaries to (and the Sellers shall cause the Companies and their respective Subsidiaries to) afford, afford and cause their key management personnel, accountants and other representatives to afford, to the other party Buyer and the other party’s Representatives its representatives, reasonable access, during normal business hours hours, and upon prior notice throughout the period prior reasonable advance notice, to the Effective Time, to their respective Companies’ personnel, propertiesand to business, Contractsfinancial, filings with Governmental Entities legal, tax, compensation and books other data and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestCompanies’ affairs and operations; 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 (iii) such party shall inform the other party of the nature of the information being withheld, and Buyer shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access conduct its due diligence review in a manner which will not disrupt the systems and information operation of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) Companies’ businesses; provided further, that all requests for access shall be subject directed to ▇▇▇▇▇▇▇▇ Inc. (as representative for the Confidentiality Agreement so long Companies) or such other person as it satisfies the definition of “Evaluation Material” contained therein.
Companies may designate from time to time. Notwithstanding the foregoing, (ba) To the extent that any Buyer shall not have access to personnel records of the Companies and their respective Subsidiaries relating to individual performance or evaluation records, medical histories or other information which in the Sellers’ reasonable good faith opinion is sensitive or material furnished pursuant to this Agreement may include material the disclosure of which could subject to the attorney-client privilege, work product doctrine or any other applicable privilegeSellers, 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar Companies or any of their respective Representatives Subsidiaries to risk of liability; and (b) nothing herein shall affect require the Companies or the Sellers to provide access to, or to disclose any information to, the Buyer if such access or disclosure (i) would cause significant competitive harm to a Company or any of its Subsidiaries if the transactions contemplated by this Agreement are not consummated, (ii) would require the Companies, any of their respective Subsidiaries, the Sellers or their respective Affiliates to disclose any financial or proprietary information of or regarding the Affiliates of the Companies or the Sellers (excluding the Subsidiaries of the Companies) or otherwise disclose information regarding the Affiliates of the Companies or the Sellers (excluding any Subsidiaries of the Companies) that the Companies reasonably deem to be deemed commercially sensitive, (iii) would waive any legal privilege or (iv) would be in violation of applicable Law (including the HSR Act) or the provisions of any agreement to affectwhich the Companies, modify any of their respective Subsidiaries, the Sellers or waive any of their respective Affiliates is a party; provided, however, that the applicable Seller or Company party to such agreement shall use its reasonable best efforts to obtain consent to disclose such information thereunder. None of the Companies and their respective Subsidiaries nor the Sellers or their respective Affiliates and representatives make any representation or warranty as to the accuracy of any information (if any) provided or made available pursuant to this Section 4.4, and the Buyer and its Affiliates and representatives may not rely on the accuracy of any such information, in each case other than the representations and warranties of EchoStar or DISH, respectively, expressly and specifically set forth in Article V or Article VI, as qualified by the Disclosure Schedules. The information provided or made available pursuant to this Section 4.4 will be governed by all the terms and conditions of the Confidentiality Agreement.
Appears in 1 contract
Access. The Company shall (ai) Upon reasonable noticemake available for inspection by Parent, each Audiocodes and their Representatives all of DISH the Company’s properties, assets, books, records (including the work papers of the Company’s external accountants) and EchoStar shall, Contracts and shall cause each any other materials reasonably requested by any of their respective Subsidiaries to, afford them relating to the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during Company at such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business times as DISH Parent or EchoStar, as the case may be, Audiocodes 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 make available to Parent, Audiocodes and their Representatives the officers, other senior management and Representatives of the Company for interviews, at such party under times as Parent, Audiocodes and their Representatives may reasonably request, to discuss the attorney-client privilegeinformation furnished to Parent, Audiocodes and their Representatives and otherwise discuss the attorney work product doctrine or any other applicable privilegeCompany’s existing and prospective businesses and assets and liabilities; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its commercially reasonable best efforts to make alternative arrangements with respect to assist in gaining reasonable access for Parent, at such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party times as Parent and its Representatives pursuant may reasonably request, to this Section 4.8(athe Company’s lenders, creditors, lessors, lessees, licensors, licensees, officers, employees, developers, contractors, distributors, vendors, clients, customers, suppliers, Affiliates or other Persons having a material business relationship with the Company; and (iv) make available to Parent, Audiocodes and their Representatives such information and materials relating to the Company as are necessary or appropriate in order to prepare and file reports and registration statements with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”) and under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including using commercially reasonable efforts to assist Parent and Audiocodes in obtaining any consents required from the Company’s independent public accountants in order to file such reports and registration statements; and (v) otherwise assist Parent and its Representatives in becoming familiar with the Company’s existing and prospective businesses and assets and liabilities to such extent and at such times as Parent and its Representatives may request. Any and all such investigations shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company. Any information that is provided by the Company to Parent, Audiocodes or their Representatives in connection with the transactions contemplated by this Agreement shall constitute “Confidential Information” as such term is defined, and subject to the exceptions set forth, in the Confidentiality Agreement so long dated as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilegeAugust 18, work product doctrine or any other applicable privilege2005, 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 between Parent and the joint defense doctrineCompany (the “Confidentiality Agreement”).
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Audiocodes LTD)
Access. From the date hereof until the Closing or the earlier termination of this Agreement, except as determined by the Seller or the Company in good faith (ai) Upon to be necessary to ensure compliance with any applicable Laws or (ii) to reasonably be expected to waive the attorney-client privilege, other legal privilege or violate any contractual confidentiality obligations (provided that, upon Buyer’s written request, the Company shall use commercially reasonable noticeefforts to obtain the consent of any Person necessary to permit disclosure of any information subject to such contractual confidentiality obligations and otherwise make appropriate alternative disclosure arrangements in a manner that would not reasonably be expected to violate such Laws, each of DISH and EchoStar shallwaive such privilege or violate such obligations), the Company shall give and shall cause each of their respective the Company Subsidiaries toto give Buyer and its representatives, afford to the other party and the other party’s Representatives upon reasonable advance written notice, reasonable access, during normal business hours upon prior notice throughout the period prior hours, to the Effective Time, to their respective personnelassets, properties, Contractsbooks, filings with Governmental Entities records and books agreements of the Company and records andthe Company Subsidiaries, and the Company shall, and shall cause the Company Subsidiaries to, permit Buyer and its representatives to make such inspections as Buyer may reasonably require and to furnish Buyer and its representatives during such period, each of DISH and EchoStar shall furnish promptly period with all such information relating to the other party all available information concerning its business Company and the Company Subsidiaries as DISH or EchoStar, as the case Buyer may be, may from time to time reasonably request; provided, however, that each party none of the Company or the Company Subsidiaries shall be required to (x) make available medical records, workers compensation records, the results of any drug testing or other sensitive or personal information if doing so could reasonably be expected to result in a violation of applicable Law or (y) provide any Tax Returns or other books and records related to Taxes, except as provided by Section 8.05; provided, further, that any such access shall not unreasonably interfere with the normal operations of the Seller or its Affiliates, including the Company or the Company Subsidiaries. All of such information will be treated as confidential information pursuant to the terms of the NDA. Notwithstanding anything to the contrary in this Agreement, the Company and the Company Subsidiaries shall not be required to permit make available personnel records relating to any inspection Person’s individual performance, evaluation records, medical records, workers compensation records, the results of any drug testing or other access, sensitive or personal information if doing so would reasonably be expected to disclose any information, that result in the reasonable judgment a violation 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinLaw.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. From the Effective Date until the earlier of the Closing or the termination of this Agreement pursuant to Section 11.01, subject to suitable protections to ensure compliance with all applicable antitrust and competition Laws, the Buyer or, in the Seller’s discretion where necessary to comply with such applicable antitrust and competition Laws, the Buyer’s external legal counsel on an external counsel only basis, shall (a) Upon have access upon reasonable advance written notice, each of DISH and EchoStar 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 prior hours, to the Effective Timeoffices, to their respective employees (including for the purpose of hiring interviews), officers, representatives, and other personnel, properties, ContractsPurchased Assets, filings with Governmental Entities and books and records and, during such period, each of DISH the Transferred Business and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as Seller that the case may be, Buyer may reasonably request; provided, however(b) be furnished by the Seller with true, correct and complete copies of such additional financial and operating data and other information relating to the Transferred Business or the Purchased Assets that is regularly prepared or received by the Seller, including any performance reports for the Transferred Business, in each party shall not be required case to permit any inspection or other access, or to disclose any information, that the extent in the possession of or reasonably available to the Seller, but without any representation or warranty by the Seller and without recourse to the Seller, and (c) be furnished by the Seller reasonable judgment access to the employees of such party would: the Transferred Business and any information reasonably required for filing or obtaining any Required Consents. The Buyer’s access under this Section 6.02 shall be exercised in a manner as to not unreasonably interfere with the Transferred Business or any other businesses of the Seller. Without limiting the foregoing, (i) violate the Seller shall have the right to cause any obligation of its employees, agents or representatives to accompany the Buyer during the course of any such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under access on the attorney-client privilege, the attorney work product doctrine or premises of any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i)Leased Real Property, (ii) the Buyer shall observe and comply with any safety, security and other rules and regulations imposed by the owners, lessors or licensors of the respective facilities, or which are reasonably imposed by the Seller, while on the premises of any Leased Real Property, (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information notwithstanding any of the other party. All confidential information obtained by each party and its Representatives pursuant to terms of this Section 4.8(a) 6.02, access to any Leased Real Property shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(band may be prohibited by) To the extent that any all of the information or material furnished pursuant to this Agreement may include material subject to terms of the attorney-client privilege, work product doctrine or any other applicable privilege, leases and the parties understand and agree that they have a commonality of interest with respect Permitted Liens applicable to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended toLeased Real Property, and (iv) all access, inspections and other activities of the Buyer shall notbe performed at the Buyer’s sole cost and expense, waive or diminish in any way the confidentiality of such material or its continued protection under the attorneya good and workmanlike manner, lien-client privilegefree, work product doctrine or any other and in compliance with all applicable privilege. All such information that is entitled to protection under the attorney-client privilegelaws, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement rules and the joint defense doctrineregulations.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. From the date of this Agreement to the Closing, the Company will, and will cause the other Acquired Companies to (a) Upon give Parent and Merger Sub and their authorized representatives reasonable noticeaccess to all personnel, each books, records, offices and other facilities and properties of DISH the Acquired Companies (subject to any restrictions which may be imposed under applicable Leases), (b) permit Parent and EchoStar shallMerger Sub to make such inspections thereof as Parent and Merger Sub may reasonably request, and shall (c) cause each of their respective Subsidiaries to, afford its officers to furnish Parent and Merger Sub with such available financial and operating data and other information with respect to the other party business and properties of the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior Acquired Companies as Parent and Merger Sub may from time to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may time reasonably request; provided, however, that each party (x) any such access shall be conducted at a reasonable time and in such a manner as not to interfere unreasonably with the operation of the business of the Acquired Companies, (y) Parent and Merger Sub shall not have access to perform any invasive environmental testing at the properties, and (z) Parent and Merger Sub and their representatives shall not contact or hold discussions with any Acquired Company’s landlord, the holders of any mortgages or deeds of trust encumbering the Owned Real Property, customers, suppliers or non-management employees of the Acquired Companies without the prior written consent of the Company, which consent shall not be unreasonably withheld, conditioned or delayed. All such information and access shall be subject to the terms and conditions of the letter agreement dated January 26, 2007, between Parent and the Company (the “Confidentiality Agreement”). Notwithstanding anything to the contrary in this Agreement, the Acquired Companies shall not be required to permit disclose any inspection information to Parent or other accessMerger Sub or its authorized representatives if doing so could violate any agreement or federal, state, local or foreign Law to which the Acquired Companies is a party 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 which 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 the joint defense doctrinesubject.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Smucker J M Co)
Access. (a) Upon reasonable noticeFrom the Execution Date through the earlier of the termination of this Agreement pursuant to Article VIII and the Closing, each of DISH and EchoStar Seller shall, and shall cause each of their respective Subsidiaries to, the Acquired Companies to afford to the other party Purchaser and the other party’s its authorized Representatives reasonable access, during normal business hours upon prior notice throughout and in such manner as not unreasonably to interfere with normal operation of the period prior Business, to the Effective Timeproperties, to their respective personnel, propertiesbooks, Contracts, filings with Governmental Entities records and books appropriate officers and records andemployees who currently provide services to the Acquired Companies, during such periodthe Lucedale Plant, each of DISH or the Pascagoula Terminal and EchoStar shall furnish promptly to the such authorized Representatives with all financial data and other party all available information concerning its business the Acquired Companies, the Lucedale Plant, and the Pascagoula Terminal as DISH or EchoStar, as the case may be, Purchaser and such Representatives may reasonably request; provided. Notwithstanding the foregoing, howeverPurchaser shall have no right of access to, that each party and Seller and the Acquired Companies shall not be required have any obligation to permit any inspection or other accessprovide to Purchaser, or information relating to disclose any information, that in the reasonable judgment of such party would: (i) violate any obligation proprietary data which relates to another business or asset of such party Seller and is not primarily used in connection with respect to confidentiality the ownership, use or privacy; operation of the Business, (ii) jeopardize protections afforded such party under the any information subject to contractual confidentiality obligations or any privilege (including attorney-client privilege), the attorney work product doctrine or any other applicable privilege; or (iii) violate any Legal Requirementinformation the disclosure of which would result in a violation of Law, including or (iv) any Covid-19 Measure; provided that in each case information related to Seller’s negotiation or preparation of clauses (i), (ii) and (iii) such party shall inform this Agreement or the other party of Transaction Documents or the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinsale process related thereto.
(b) To Purchaser agrees to defend, indemnify, and hold harmless Seller, each of the extent that Acquired Companies, and their respective Affiliates and its and their respective Representatives, from and against any and all Damages incurred by any such Person arising out of the access rights under Section 5.3(a), including in respect of any claims against Seller or its Affiliates by any Representatives of Purchaser for any injuries or property damage sustained while present at the Lucedale Plant, the Pascagoula Terminal, or on any real property owned or leased by any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrineAcquired Companies.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon The Parties agree that the MMT Parties and their authorized agents and representatives will have the reasonable notice, each of DISH and EchoStar shall, right and shall cause each of their respective Subsidiaries to, afford the NFP to the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Timegrant such right, to their respective personnel(i) inspect and audit the Company Parties books and records (including records of account data, propertiesfinancial data, operating data, Tax records, records of corporate proceedings, Contracts, filings with Governmental Entities trademarks, Patent application files, governmental consents, personnel records, environmental records and books site assessments and records and, during such period, each of DISH other business activities and EchoStar shall furnish promptly matters relating to the other party all available information concerning its business as DISH or EchoStar, 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 (itransactions contemplated hereunder), (ii) reasonable access the Company Parties’ facilities, including the right of physical access for purposes of walk-through inspections of the Company Parties’ real property (including all Leased Real Property) and assets located thereon, Phase 1 (or equivalent) environmental assessments (but not including any sampling, drilling or testing of any kind without the Company Parties’ written approval and subject to the terms of the applicable Real Property Lease), surveying and such other activities as the MMT Parties may elect in their reasonable discretion subject to the Company Parties’ prior approval and the terms of the applicable Real Property Lease, and (iii) such party shall inform consult with the other party Company Parties’ officers, directors, managers, attorneys, auditors and accountants concerning customary due diligence matters. Such access will be at reasonable times during business hours, upon advanced written notice and in a manner not to unreasonably interfere with the normal business operations or disrupt the personnel of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyCompany Parties. All confidential information obtained by each party and its Representatives provided pursuant to this Section 4.8(a5.4(a) shall will be subject to the Confidentiality Agreement so long as it satisfies Agreement. Notwithstanding anything to the definition of “Evaluation Material” contrary contained therein.
in this Section 5.4(a), Seller may withhold any document (bor portions thereof) To or information to the extent that (1) the provision of access to such document (or portion thereof) or information violates (or would likely violate), any Contract to which Seller is a party or is subject, (2) such document (or portion thereof) or information constitutes (or would likely constitute) privileged attorney client communications or attorney work product or (3) if the provision of the access to such document (or portion thereof) or information would reasonably be expected to conflict with applicable Laws or material furnished pursuant to this Agreement may include material subject Orders; provided, that in each case, Seller will, to the attorney-client privilegeextent legally permissible, work product doctrine or any other applicable privilegemake appropriate commercially reasonable substitute arrangements if the restrictions in clauses (1) through (3) apply, to 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 extent reasonably practicable in light 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 the joint defense doctrinerestrictions.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Access. (a) Upon reasonable noticeFrom the date of this Agreement until the Closing or earlier termination of this Agreement, each subject to the terms of DISH the confidentiality agreement, dated as of October 2, 2012, originally entered into between the Seller and EchoStar the Purchaser’s Parent (the “Confidentiality Agreement”), the Seller shall, and shall cause each of their respective Subsidiaries the Company to, afford to the other party and Representatives of the other party’s Representatives Purchaser, reasonable accessaccess upon reasonable advance notice, during normal business hours upon prior notice throughout the period prior hours, to the Effective Time, to their respective personnel, Company’s properties, Contractsbooks, filings with Governmental Entities records and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, personnel as the case may be, Purchaser may reasonably request; provided, however, that each party the Company shall not be required to permit provide access to any inspection information or other accessdocuments which would, or to disclose any information, that in the reasonable judgment of such party would: the Seller or the Company, (i) violate breach any obligation agreement of such party the Seller or the Company with respect to confidentiality or privacy; any third party, (ii) jeopardize protections afforded such party under constitute a waiver of the attorney-client privilegeor other privilege held by the Seller or the Company, the attorney work product doctrine or any other applicable privilege; or (iii) violate otherwise Violate any Legal Requirement, including any Covid-19 Measure; provided that applicable Law or (iv) result in each case of clauses (i), (ii) and (iii) such party shall inform the other party a competitor of the nature of Company, or a counterparty to any Contract to which the Company is a party, receiving material information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinwhich is competitively sensitive.
(b) To The Purchaser agrees to indemnify and hold the extent that Seller and its affiliates harmless from any and all Claims and Liabilities, including costs and expenses for injury to or death of any natural person, and any loss of, damage to or destruction of any property owned by any Person, including the Seller, its affiliates or its or its affiliates’ Representatives (including Claims or Liabilities for loss of use of any property and legal fees and the cost of enforcing this indemnity) resulting directly or indirectly from the action or inaction of the Purchaser, its affiliates or any of its or its affiliates’ Representatives during any visit to the information business or material furnished property sites of the Company prior to the Closing Date, whether pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine Section 6.2 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 the joint defense doctrineotherwise.
(c) No exchange None of information or investigation by DISH or EchoStar the Purchaser or any of their respective its Representatives shall affect conduct any environmental testing or be deemed sampling on any of the business or property sites of the Company prior to affect, modify or waive the representations and warranties Closing Date.
(d) No investigation pursuant to the rights of EchoStar or DISH, respectively, set forth access granted in this Section 6.2 shall affect any representation or warranty made by the Parties hereunder.
(e) Notwithstanding the foregoing, any access shall be conducted in such a manner so as not to interfere unreasonably with the business or operations of the Company or otherwise result in any significant interference with the prompt and timely discharge by the Company’s employees of their normal duties.
(f) The Purchaser will hold any information obtained pursuant to this Section 6.2 in accordance with the terms of the Confidentiality Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Usec Inc)
Access. At all times during the period commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VII and the Effective Time (a) Upon the “Interim Period”), the Company shall afford Parent and its Representatives reasonable access during normal business hours, upon reasonable notice, each of DISH and EchoStar 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 prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each and personnel of DISH the Company and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestSubsidiaries; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, information to the extent that (a) any applicable Law requires the Company or its Subsidiaries to disclose any information, that in restrict or otherwise prohibit access to such documents or information only to the reasonable judgment extent of such party would: restriction or prohibition, (ib) granting such access would violate any obligation obligations of such party the Company or any of its Subsidiaries with respect to confidentiality to any third party or privacy; (ii) jeopardize protections afforded such otherwise breach, contravene or violate, constitute a material default under, or give a third party under the attorney-client privilegeright terminate or accelerate any obligations under, any then effective Contract to which the attorney work product doctrine Company or any other applicable privilege; of its Subsidiaries is a party, or (iiic) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect access to such information. Each party shall use commercially reasonable security measures documents or information would reasonably be expected to access the systems and information result in a waiver of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 privilege applicable to such matters and it is their desiredocuments or information, intention and mutual understanding provided, that the sharing Company 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 waive such a privilege. Any investigation conducted pursuant to this Section 4.1 shall be conducted in a manner that does not unreasonably interfere with the conduct of such material is not intended tothe business of the Company or its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of its Subsidiaries, shall be subject to the Company’s reasonable security measures and insurance requirements, and shall notnot include the right to perform invasive testing without the Company’s prior written consent, waive or diminish in its sole discretion. The terms and conditions of the Confidentiality Agreement shall apply to 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) No exchange of information or investigation obtained by DISH or EchoStar Parent or any of their respective its Representatives in connection with any investigation conducted pursuant to this Section 4.1. 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 information. No investigation shall affect or be deemed to affect, modify or waive the Company’s representations and warranties of EchoStar contained herein, or DISH, respectively, set forth in limit or otherwise affect the remedies available to Parent or Merger Sub pursuant to this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable noticespecific request made to either ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ of MKC or ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, the Sellers will afford to the Purchaser and its authorized representatives reasonable access to each Company's financial, title, tax, corporate and legal materials and operating data and information available as of the date hereof and which becomes available to the Sellers at any time prior to the Effective Date, and will furnish to the Purchaser such other party information as it may reasonably request, unless any such access and disclosure would violate the terms of any agreement to which either Seller or any Company is bound or any applicable law or regulation. The Sellers will use their reasonable business efforts to secure all requisite consents for the examination by the Purchaser and its representatives of all information covered by confidentiality agreements. The Sellers will cause each Company to allow the Purchaser access to and consultation with the lawyers, accountants, and other party’s Representatives professionals employed by or used by such Company for the purposes of negotiating, preparing, executing and performing this Agreement. Any such consultation shall occur under circumstances appropriate to maintain intact the attorney-client privilege as to privileged communications and attorney work product. Additionally, the Sellers will afford to the Purchaser and its authorized representatives reasonable accessaccess to the books and records of the Sellers insofar as they relate to property, accounting and tax matters of any Company. Until the Effective Date, the confidentiality of any data or information so acquired shall be maintained by the Purchaser and its representatives, except in those cases where, on the advice of counsel, disclosure is required in governmental filings or judicial, administrative or arbitration proceedings. Further, the Sellers will afford to the Purchaser and its authorized representatives reasonable access from the date hereof until the Effective Date, during normal business hours upon prior notice throughout the period prior to the Effective Timehours, to their respective personnel, each Company's assets and properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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)such access shall be at the sole cost, (ii) expense and (iii) such party shall inform the other party risk of the nature of Purchaser. The Sellers acknowledge that the information being withheld, Purchaser has had access and shall use its reasonable best efforts will continue to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to have access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition senior management of “Evaluation Material” contained therein.
(b) To the extent each Company and that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 each of such material is not intended to, and shall not, waive or diminish in any way the confidentiality members of such material or its continued protection under the attorney-client privilege, work product doctrine or any other applicable privilege. All such information that senior management is entitled to protection under reveal to the attorney-client privilege, work product doctrine or Purchaser and its representatives information concerning any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or Company that may be deemed to affect, modify or waive the representations confidential and warranties of EchoStar or DISH, respectively, set forth in this Agreementproprietary.
Appears in 1 contract
Access. (a) Upon reasonable noticeSubject to compliance with applicable Law, each of DISH and EchoStar shall, and the Company shall cause each of their respective Subsidiaries to, afford to the Parent and Merger Sub and their officers, employees, accountants, consultants, legal counsel, financial advisors, financing sources and agents and other party representatives (collectively, “Representatives”) and the other partyParent’s and Merger Sub’s financing sources and their Representatives reasonable access, access during normal business hours upon prior notice hours, throughout the period prior to the earlier of the Effective TimeTime and the Termination Date, to their respective personnel, the Company’s and its Subsidiaries’ properties, Contracts, filings with Governmental Entities and commitments, books and records and, during such period, each of DISH the Company shall, and EchoStar shall cause its Subsidiaries to, furnish promptly to the other party Parent and its Representatives and Parent’s financing sources and their Representatives all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested; provided that no investigation or information provided pursuant to this Section 6.2 shall be deemed to modify any representation or warranty made by the Company herein. The foregoing notwithstanding, the Company shall not be required to afford such access or furnish such information if (i) it would unreasonably disrupt the operations of the Company or any of its Subsidiaries or (ii) the Company in good faith determines, based upon advice of outside counsel, that it would cause a material violation of the confidentiality provisions of any Contract to which the Company or any of its Subsidiaries is a party that is listed on Section 6.2 of the Company Disclosure Schedule or would cause a risk of loss of the privilege applicable to such information; provided, however, that each party the Company shall not be required to permit any inspection cooperate with Parent and Merger Sub to the greatest extent practicable and to take all actions reasonably necessary to allow Parent and Merger Sub to review such information while preserving attorney-client or other access, or to disclose any information, that in the reasonable judgment of such party would: (i) violate any obligation of such party privilege with respect to confidentiality such information, including, entering into joint defense agreements or privacy; (ii) jeopardize protections afforded other arrangements with Parent and Merger Sub to allow such party under disclosure. At the attorney-client privilegerequest of Parent, through the period prior to the earlier of the Effective Time and the Acceptance Date, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and Company shall use its reasonable best efforts (which shall not include any obligation to make alternative arrangements pay any fee or incur any liability or obligation to any third party) to obtain waivers from person who are parties to Contracts with respect the Company or its Subsidiaries that contain confidentiality provisions in order for Parent to be provided reasonable access to such informationContracts. Each party Without limiting the foregoing, the Company shall use commercially reasonable security measures to access the systems and information keep Parent apprised on a reasonably prompt basis of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject material developments relating to the Confidentiality Agreement so long as it satisfies Restatement and Related Matters and shall provide Parent at least five (5) Business Days’ advance notice prior to filing any audited or unaudited financial statements with the definition of “Evaluation Material” contained thereinSEC.
(b) To the extent Parent hereby agrees that any of the all information or material furnished pursuant provided to this Agreement may include material subject to the 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, Representatives in connection with this Agreement and the joint defense doctrineconsummation of the transactions contemplated hereby shall be treated in accordance with the Non-Disclosure Agreement, dated November 22, 2005, between the Company and Parent (the “Confidentiality Agreement”).
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon The Company shall afford Parent and its employees, accountants, consultants, legal counsel, financial advisors, financing sources and agents and other representatives reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives access upon reasonable access, advance notice during normal business hours upon prior notice throughout the period prior to until the Effective Time, to their respective its and its Subsidiaries’ personnel, propertiescontracts, Contractscommitments, filings with Governmental Entities and books and records records, properties (excluding the Company’s or any third party’s material Trade Secrets) and any report, schedule or other document filed or received by it pursuant to the requirements of applicable Laws and, during such period, each of DISH the Company shall, and EchoStar shall furnish promptly cause its Subsidiaries to, without limitation to the preceding 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), (ii) a copy of all available correspondence between such party or any of its Subsidiaries and any party to a Contract with regard to any 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 business, properties and personnel as DISH or EchoStar, as the case may be, Parent may reasonably request. All access pursuant to this Section 5.2(a) shall be conducted in such a manner as not to interfere unreasonably with the normal operations of the Company or any of its Subsidiaries.
(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 satisfaction of the conditions precedent set forth in Section 6.2(a), Section 6.2(b) or Section 6.2(c), each of Parent and Merger Sub shall provide the Company with reasonably accessible information upon reasonable advance notice by the Company, throughout the period until the Effective Time. All access pursuant to this Section 5.2(b) shall be conducted in such a manner as not to interfere unreasonably with the normal operations of Parent or any of its Subsidiaries.
(c) Notwithstanding anything to the contrary contained in this Section 5.2, no party to this Agreement 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 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 their assets or properties are bound; 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 (iii) instances such party shall inform the other party of the general nature of the information being withheldwithheld and, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of upon the other party. All confidential information obtained by each ’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 its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein(ii).
(bd) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 No investigation by Parent or its continued protection under representatives following 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) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives date hereof shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar the Company set forth in this Agreement, and no investigation by the Company or DISH, respectively, its representatives following the date hereof shall affect or be deemed to modify or waive the representations and warranties of Parent or Merger Sub set forth in this Agreement.
(e) The parties hereto hereby agree that all information provided to them or their respective officers, directors, managers, employees or representatives in connection with this Agreement and the consummation of the transactions contemplated hereby shall be governed in accordance with the confidentiality agreement, dated as of August 18, 2014, between the Company and Parent (the “Confidentiality Agreement”), which shall continue in full force and effect in accordance with its terms.
Appears in 1 contract
Sources: Merger Agreement (Conversant, Inc.)
Access. (a) Upon reasonable noticeAfter the date of this Agreement until the earlier of the Closing or the termination of this Agreement, each of DISH and EchoStar Newpark shall, and shall cause each of the Transferred Entities and their respective Subsidiaries to, representatives to (i) afford to the other party Purchaser and the other party’s Representatives reasonable its representatives access, at reasonable times during normal business hours upon prior notice throughout after first obtaining the period prior consent of Newpark, to the Effective Timebooks, to their respective personnelrecords, propertiesproperties and personnel of the Transferred Entities; (ii) furnish Purchaser and its representatives with such additional financial, Contracts, filings with Governmental Entities operating and books other data and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, Purchaser may reasonably request; provided, however, that each party and (iii) otherwise cooperate with the investigation by Purchaser and its representatives of the Transferred Entities. The foregoing shall not be required require Newpark, DFI, Newpark Texas or any Transferred Entity to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) Newpark is reasonably likely to result in the disclosure of any trade secrets to third parties, violate any obligation of such party its obligations with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under disclose information that does not relate exclusively to 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyBusiness. All confidential information obtained by each party provided to Purchaser and its Representatives representatives in accordance with this Section 5.1 or otherwise pursuant to this Section 4.8(a) Agreement shall, prior to the Closing, be held by Purchaser and its representatives in accordance with, shall be considered “Evaluation Material” under, and shall be subject to the terms of, the Confidentiality Agreement so long Agreement. All requests for information made pursuant to this Section 5.1(a) shall be directed to a designated officer of Newpark or such other individual as it satisfies may be designated by Newpark, and shall not be granted to the definition of “Evaluation Material” contained thereinextent deemed inconsistent with any Law.
(b) To At and after the extent that any Closing Date, Purchaser shall and shall cause its Affiliates and each of their respective representatives to afford Newpark and its representatives access, at reasonable times during normal business hours after first obtaining the consent of Purchaser, to the books, records, properties and personnel of the Transferred Entities and furnish Newpark and its representatives with such additional financial, operating and other data and information as Newpark may reasonably request in order to prepare its Tax Returns and other documents and reports required to be filed by it with Governmental Entities, in its financial statements or material furnished in connection with any Action against or investigation by, any Governmental Entity of, or in connection with any Tax examination of, Newpark. All requests for information made pursuant to this Agreement Section 5.1(b) shall be directed to a designated officer of Purchaser or such other individual as may include material subject to the 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 the joint defense doctrinebe designated by Purchaser.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Newpark Resources Inc)
Access. (a) Upon 5.1.1 FP Bancorp and FPNB shall have the right, on reasonable noticenotice and during ordinary business hours, each to examine through their agents, auditors and attorneys all of DISH the books, records and EchoStar shallproperties of RB Bancorp and BRB, including but not limited to all loan, investment, accounting, property and legal records and files. Such examination shall cause each be made in a manner that will not unreasonably interfere with the conduct of their respective Subsidiaries tobusinesses, afford but shall not be conducted in any case in a manner that would cause the loss of the attorney-client privilege with regard to any particular matter proposed to be examined; provided that the presence of a director who is also an attorney, in his capacity as a director, shall not give rise to an attorney-client privilege for purposes of this Agreement. RB Bancorp and BRB shall provide adequate space and facilities, to the other party end that such examination shall be completed expeditiously, completely and accurately. In furtherance of the other party’s Representatives reasonable accessforegoing, during normal business hours upon prior notice throughout the period prior to the Effective TimeClosing Date, BRB and RB Bancorp shall provide FP Bancorp with all reports, board packages and other written communications with board members at the same times as such information is provided to their respective personnelsuch board members, propertiesincluding, Contractswithout limitation, filings with Governmental Entities management reports and books analysis of OREO, classified loans, and records and, during such period, each of DISH and EchoStar shall furnish promptly any other reports relating to the other party all available information concerning loan portfolio or servicing obligations and rights of RB Bancorp or BRB. In addition, FP Bancorp shall have the right to examine BRB's records with respect to its business as DISH loan portfolio on a monthly basis. In the event the Reorganization provided for hereby is not consummated for any reason, FP Bancorp, FPNB, RB Bancorp and BRB each shall not, directly or EchoStar, 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 wouldindirectly: (i) violate utilize for its own benefit any obligation Proprietary Information (as hereinafter defined) or (ii) disclose to any person any Proprietary Information, except as such disclosure may be required in connection with this Agreement or by law. "Proprietary Information" shall mean all confidential business information concerning the pricing, costs, profits and plans for the future development of such party business, and the identity, requirements, preferences, practices and methods of doing business of specific customers or otherwise relating to the business and affairs of the parties, and with respect to confidentiality or privacyRB Bancorp and BRB, other than information which (A) was lawfully in the possession of the examining party prior to June 30, 1995 except under the Confidentiality Agreement and Negotiation Letter; (iiB) jeopardize protections afforded such is obtained by FP Bancorp, FPNB, RB Bancorp or BRB after the date hereof from a source other than a party hereto not under an obligation of confidentiality to the attorney-client privilege, party hereto to which the attorney work product doctrine or any other applicable privilegeinformation relates; or (iiiC) violate any Legal Requirement, including any Covid-19 Measure; provided that is in each case of clauses (i), (ii) and (iii) such party shall inform the other party of public domain when received or thereafter enters the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information public domain through no action of the other party. All confidential information obtained by In the event the Reorganization is not consummated for any reason, each party and its Representatives pursuant to this Section 4.8(a) shall be subject return to the Confidentiality Agreement so long as it satisfies others all copies, notes and records obtained in the definition course of “Evaluation Material” contained thereinnegotiation and examination.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Fp Bancorp Inc)
Access. (a) Upon Subject to applicable law and except as otherwise contemplated by this Agreement, from the date of this Agreement until the Effective Time, the Company shall (i) upon reasonable prior notice, each of DISH give Parent, Purchaser and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, access during normal business hours upon prior notice throughout the period prior to the Effective TimeCompany Contracts, books, records, analysis, projections, plans, systems, personnel, commitments, offices and other facilities and properties of the Company, provided such access does not interfere with the Company’s business and operations, (ii) furnish Parent, Purchaser and their Representatives on a timely basis with such financial and operating data and other information with respect to their respective the business, properties and Company Contracts as Parent and Purchaser may from time to time reasonably request, and (iii) use commercially reasonable efforts to make available at all reasonable times during normal business hours to Representatives of Parent and Purchaser the appropriate individuals (including management personnel, attorneys, accountants and other professionals) for discussion of the Company’s business, properties, Contractsprospects and personnel as Parent or Purchaser may reasonably request. In addition, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar the Company shall furnish promptly to Parent (x) a copy of each material report, schedule, statement and other document submitted or filed by it with any Governmental Entity and (y) the other party all available information concerning its business as DISH internal or EchoStar, 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 external reports prepared by it in the reasonable judgment of ordinary course that are reasonably required by Parent promptly after 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject reports are made available to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinCompany’s personnel.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand Parent 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 toPurchaser shall comply with, and shall notcause their respective Representatives to comply with, waive or diminish in any way the confidentiality all of such material or its continued protection their obligations under the attorney-client privilegeConfidentiality Agreement, work product doctrine or any other applicable privilege. All such information that is entitled to protection under dated October 26, 2012, between Parent and the attorney-client privilegeCompany (the “Confidentiality Agreement”), work product doctrine or any other applicable privilege which shall remain entitled to such protection under these privileges, survive the termination of this Agreement and in accordance with the joint defense doctrineterms set forth therein.
(c) No exchange of information investigation heretofore conducted or investigation conducted pursuant to this Section 7.1 shall affect any representation or warranty made by DISH or EchoStar the parties hereunder or any conditions to the obligations of their respective Representatives shall affect the parties hereunder or be deemed any condition or requirement set forth in Annex I.
(d) Notwithstanding anything to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, contrary set forth in this Agreement, the Company shall not be required to provide access to, or to disclose information, where such access or disclosure would, in the Company’s good faith opinion, (i) violate any of the Company’s obligations with respect to confidentiality to any third party or otherwise breach, contravene or violate any Company Contract, provided the Company shall have used reasonable commercial efforts to obtain the consent of such third party to such access or disclosure without requiring the Company to pay any amount or waive any rights to obtain such consent, (ii) jeopardize the attorney-client or other privileges of the Company or (ii) breach, contravene or violate any applicable law (including the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, or any other antitrust or competition law).
Appears in 1 contract
Sources: Merger Agreement (Makemusic, Inc.)
Access. (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to Between the other party date hereof and the other party’s Closing Time, the Vendor shall allow the Purchaser and its Representatives to have reasonable access, during normal business hours upon prior notice throughout of the period prior Vendor, to the Effective Timefield locations at which the Wells and the Facilities and other Tangibles are situated ▇▇▇ ▇o the Lands and any other lands to which the rights and interests included in the Miscellaneous Interests relate in order to conduct a physical inspection thereof, including reasonable inspections to their respective personneldetermine and evaluate the environmental condition thereof in order to assess the Environmental Liabilities associated with the Assets. The Purchaser shall use all reasonable efforts to limit and minimize any disruption to operations that may be caused by such inspections and will follow all of the Vendor's safety and work permit requirements. All such inspections shall be conducted at the Purchaser's sole cost, properties, Contracts, filings with Governmental Entities risk and books expense and records and, during such period, the Purchaser shall indemnify the Vendor and each of DISH the Vendor's Related Parties from and EchoStar shall furnish promptly against all Losses and Liabilities suffered, sustained, paid or incurred by any of them and all Claims made against any of them as a consequence of any bodily injury or death suffered by any person or any damage to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably request; provided, however, that each party shall not be required to permit property of any inspection or other access, or to disclose any information, that person in the reasonable judgment of connection with 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) access and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereininspections.
(b) To Between the extent that any of date hereof and the information or material furnished pursuant to this Agreement may include material subject Closing Time, the Vendor shall provide to the attorney-client privilege, work product doctrine or any other applicable privilege, Purchaser and its Representatives reasonable access to all:
(i) title opinions and reports;
(ii) Petroleum Tenures;
(iii) agreements and documents to which the parties understand and agree that they have a commonality of interest Assets are subject;
(iv) documents relating to Encumbrances affecting the Assets;
(v) evidence with respect to such matters the payment of all rentals, royalties 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 other payments due under the attorney-client privilege, work product doctrine or Petroleum Tenures and any other applicable privilege. All such information that is entitled agreements and documents to protection under which 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.Assets are subject;
(cvi) No exchange evidence with respect to the payment of all taxes, charges and assessments pertaining to the Assets;
(vii) lease records, data sheets, production records, ownership maps and surveys;
(viii) Permits;
(ix) all documents and information relevant to Environmental Liabilities;
(x) accounting records, policies of insurance, consulting agreements, field contracts and other agreements relating to the operation of the Assets; and
(xi) other documentation relating to or investigation by DISH or EchoStar or any of their respective Representatives comprising the Assets; that are in the Vendor's possession and control. Such review shall affect or be deemed to affectconducted at the Purchaser's sole cost, modify or waive the representations risk and warranties of EchoStar or DISH, respectively, set forth in this Agreementexpense.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Australian Canadian Oil Royalties LTD)
Access. (a) Upon reasonable noticeBetween the date hereof and the Closing, each of DISH Company will give Buyer and EchoStar shallBuyer’s authorized representatives reasonable access to such Company’s offices, accounting and shall cause each of their respective Subsidiaries tofinancial books, afford records, files and other similar documents and materials to the other party and the other partyextent in such Company’s Representatives reasonable accesspossession, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH custody or EchoStar, as the case may be, may reasonably request; provided, however, that each party shall not control and/or which can be required to permit any inspection provided without undue effort 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 (iii) such party shall inform the other party of the nature of the information being withheld, expense and shall use its Reasonable Efforts to cause its Affiliates to give Buyer and Buyer’s authorized representatives reasonable best efforts access to make alternative arrangements the Employees involved in the Business or responsible for the Properties. Furthermore, Seller will, and will cause each Company to give Buyer, or Buyer’s authorized representatives, at all reasonable times before the Closing Date and upon adequate notice to Seller, physical access to the Properties of such Company for the purpose of inspecting same. Buyer agrees to comply fully with respect to such informationthe rules, regulations and instructions issued by each Company regarding the actions of Buyer while upon, entering or leaving the Properties. Each party shall use commercially reasonable security measures to access the systems and information Buyer’s environmental investigation of the other partyProperties shall be limited to conducting a Site Assessment, and at each Company’s discretion, shall be accompanied by a representative of such Company. Upon the written request of Seller or a Company, Buyer shall furnish, free of costs, to each Company or Seller with a copy of any written report prepared by or for Buyer related to any Site Assessment of the Properties as soon as reasonably possible after it is prepared. All confidential information obtained environmental reports prepared by each party and its Representatives pursuant to this Section 4.8(a) or for Buyer shall be subject maintained in strict confidence and for use solely in connection with the evaluation of the Properties. Except for the obligations to provide reports to the Confidentiality Agreement so long Companies or Seller as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreementthe preceding sentence, if Closing does not occur, such reports, shall not be disclosed to any other party, except as may be required by Applicable Law, Applicable Environmental Law, or directive from a Governmental Entity.
Appears in 1 contract
Sources: Membership Interest Purchase and Sale Agreement (Targa Resources Partners LP)
Access. Subject to applicable Law relating to the sharing of information (a) Upon including, without limitation, the U.S. International Traffic in Arms Regulations), upon reasonable notice, each of DISH and EchoStar shallexcept as may otherwise be required by applicable Law, the Company and Parent (to the extent related to the Amalgamated Company) shall (and shall cause each of their respective its Subsidiaries to, ) afford to the other party other’s Representatives and the other party’s Representatives Solvency Expert (as defined in Section 4.1(f)) reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books management, contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party all available information concerning its business business, properties and personnel as DISH may reasonably be requested, provided that no investigation pursuant to this Section 3.6 shall affect or EchoStarbe deemed to modify any representation or warranty made by the Company or Parent, as the case may be, may reasonably request; and provided, howeverfurther, that each party the foregoing shall not be required require the Company or Parent (i) to permit any inspection or other accessinspection, or to disclose any information, that in the its reasonable judgment would result in the disclosure of such party would: (i) any trade secrets of third parties or violate any obligation of such party its obligations 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 (iii) such party if it shall inform the other party of the nature of the information being withheld, and shall use its have used reasonable best efforts to make alternative arrangements with respect obtain the consent of such third party to such informationinspection or disclosure or (ii) to disclose any privileged legal advice or communications. Each party The Company shall use commercially reasonable security measures make available to access Parent, substantially in the systems format currently being prepared, the monthly report to the executive management committee of the Company (the “EC Funnel Report”), the monthly controller’s report and information related exhibits, and the monthly “Health Status Reports,” in each case, promptly after being completed but in any event no later than the time such report is furnished to the executive management committee of the Company, in the case of the EC Funnel Report, or to the executive officers of the Company in the case of the other partydocuments. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 3.6 shall be subject directed to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any an executive officer of the information Company or material furnished pursuant to this Agreement Parent, as the case may include material subject to be, or such Person as may be designated by the attorney-client privilegeCompany’s or Parent’s executive officers, work product doctrine or any other applicable privilege, as 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 privilegecase may be. All such information that is entitled shall be governed by the terms of the Confidentiality Agreement. If Parent or its Affiliates have entered into a separate agreement with the Company restricting access to protection under the attorney-client privilegeinformation, work product doctrine or any other applicable privilege such agreement shall remain entitled to such protection under these privileges, this Agreement and the joint defense doctrinecontinue in effect in accordance with its terms.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Transaction Agreement and Plan of Amalgamation (Intelsat LTD)
Access. (a) Upon Subject to applicable Law relating to the sharing of information, upon reasonable notice, and except as may otherwise be required by applicable Law, each of DISH Yankees and EchoStar shall, Braves shall (and each shall cause each of their respective its Subsidiaries to, ) afford to the other party Party’s officers, employees, counsel, accountants, consultants and the other party’s Representatives authorized representatives (“Representatives”) reasonable access, during normal business hours upon prior notice throughout the period prior to the Yankees Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party Party all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested; provided, howeverthat no investigation pursuant to this Section 4.6 shall affect or be deemed to modify any representation or warranty made by any Party; and provided, further, that each party the foregoing shall not be required require either Yankees or Braves (i) to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) the disclosing Party would result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality if such disclosing Party shall have used reasonable best efforts to obtain the consent of such third party to such inspection 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)disclosure, (ii) and to disclose any privileged information of itself or any of its Subsidiaries, (iii) in the case of Yankees, (A) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by Yankees or any of its Subsidiaries or any other regulatory activities conducted by Yankees or any of its Subsidiaries that the Chief Executive Officer of Yankees Regulation, Inc. determines, in his or her sole discretion, is confidential and inappropriate to disclose to Braves, or (B) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by Yankees Stock Exchange LLC or Yankees Arca, Inc. or any other regulatory activities that the Chief Executive Officer of Yankees Regulation, Inc. determines, in his or her sole discretion, is confidential and inappropriate to disclose to Braves, or (iv) in the case of Braves, (x) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries or any other regulatory activities conducted by Braves or any of its Subsidiaries, if Braves or any of its Subsidiaries determines, in its sole discretion, that such party shall inform the other party information is confidential and inappropriate to disclose to Yankees, or (y) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by Braves or any of the nature its Subsidiaries, if Braves or any of the its Subsidiaries determines, in its sole discretion, that such information being withheld, is confidential and shall use its reasonable best efforts inappropriate to make alternative arrangements with respect disclose to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyYankees. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 4.6 shall be subject directed to an executive officer of Yankees or Braves, as the case may be, or such Person as may be designated by either of their executive officers, as the case may be, with a copy to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 General Counsel 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 privilegeParty. All such information that is entitled to protection under shall be governed by the attorney-client privilege, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and terms of the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
Appears in 1 contract
Access. PRE-CLOSING COVENANTS
(a) Upon reasonable noticeBetween the date hereof and the Closing, each of DISH Seller Party shall: (i) give Buyer and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives its authorized representatives reasonable access, during normal regular business hours and upon prior notice throughout the period prior to the Effective Timereasonable advance Notice, to their respective personnelsuch employees, propertiesthe Transferred Assets, Contracts, filings with Governmental Entities and such books and records andof such Seller Party, during as are reasonably necessary to allow Buyer and its Representatives to make such period, each of DISH and EchoStar shall furnish promptly inspections as they may reasonably require relating to the transactions contemplated by this Agreement and the consummation thereof, (ii) preserve all books and records relating to the operation or ownership of the Transferred Assets and any other party all available information concerning related to the Business and the Transferred Assets on or before the Closing Date consistent with such entities’ ordinary course of business, (iii) cause officers and/or limited liability company managers and officers of each such Seller Party to furnish Buyer and its business as DISH or EchoStarRepresentatives with such financial and operating data and other information with respect to such Seller Party, to the extent prepared by such Seller Party in the ordinary course of Business, as Buyer may from time to time reasonably request relating to the case may betransactions contemplated by this Agreement and the consummation thereof and (iv) make available to Buyer material environmental investigations, may reasonably requeststudies, audits, tests, reviews or other analysis conducted by or for such Seller Party in relation to the Business or the Transferred Assets; provided, however, that each party disclosure shall not be required of any information the disclosure of which would cause Seller or any of its Affiliates to permit any inspection breach a confidentiality agreement existing as of the date hereof or other access, or to disclose any information, that in the reasonable judgment of if Seller reasonably believes such party would: (i) violate any obligation of such party with respect to confidentiality or privacy; (ii) disclosure would jeopardize protections afforded such party under the attorney-client privilege. Seller shall have the right to have a Representative present at all times during any such inspections, interviews, and examinations. Buyer agrees that if Buyer or its Representatives receive, or if the attorney work product doctrine information (whether in electronic mail format, on computer hard drives or otherwise) held by any Seller Party, Buyer or its Affiliates as of the Closing includes information that relates to the business operations or other strategic matters of Seller or any other applicable privilege; or (iii) violate any Legal Requirementof its Affiliates, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party information shall inform the other party be deemed to be part of the nature of Evaluation Materials, as such term is defined in the information being withheldConfidentiality Agreement, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the terms and conditions set forth therein. Buyer further agrees that if Seller or any of its Affiliates inadvertently furnishes to Buyer copies of or access to information such that Seller or any of its Affiliates is in breach of the Confidentiality Agreement, Buyer shall, upon Seller’s request promptly return same to Seller together with any and all extracts therefrom or notes pertaining thereto (whether in electronic or other format) and delete any e-mail containing any such information after providing copies of such e-mail to Seller. Notwithstanding anything in this Agreement so long to the contrary, except for background environmental records reviews of any Governmental Authority, (i) prior to Closing, Buyer shall not investigate or inquire as it satisfies to any matter with any Governmental Authority (other than to the definition extent required to obtain or make any Governmental Approvals) having jurisdiction over any aspect of “Evaluation Material” contained thereinthe Business or the Transferred Assets, unless and until the written consent of Seller (not to be unreasonably withheld or delayed) to the making of such investigation has been received by Buyer and after consultation with Seller as to the scope and manner of the investigation or inquiry, and (ii) Buyer’s right of examination and access pending the Closing with respect to environmental matters relating to the Transferred Assets shall be limited to an examination of existing records and interviews with personnel as authorized in writing by Seller, and in no event shall include physical testing of or collection of samples from the Real Property or the Transferred Assets or contacting staff or officials of any Governmental Authority or any Third Party.
(b) To In the extent that any interest of facilitating an orderly transition of the information or material Business and in furtherance of Buyer’s rights under this Section, each Seller Party shall permit up to two (2) persons designated by Buyer to conduct the transition efforts and to be present at each of the Plants after completion of the Auction and selection of Buyer as the Winning Bidder. Seller shall provide Buyer, at no cost to Buyer, interim furnished pursuant office space, utilities and HVAC at each Plant reasonably necessary to this Agreement may include material subject allow Buyer and its Representatives to conduct transition efforts through the attorney-client privilegedate of Closing; provided that Buyer shall be responsible for all other costs relating thereto, work product doctrine or any other applicable privilegeincluding telecommunications expenses, the parties understand cost of workers’ compensation and agree that they have a commonality of interest with respect to such matters and it is their desireemployer’s liability coverage, 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 which will be maintained by Buyer for 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 doctrineemployees.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement
Access. Subject to applicable Law, each of Linde and Praxair shall (a) Upon and shall cause its Subsidiaries to), upon reasonable notice, each afford the officers, employees, counsel, accountants, consultants, investment bankers and other authorized representatives (“Representatives”) of DISH and EchoStar 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 prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books Contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested; provided, however, provided that each party the foregoing provisions shall not be required construed to require either Linde or Praxair to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: Linde or Praxair, as the case may be, would (i) result in the disclosure of any trade secrets of Linde or Praxair, as the case may be, or any of its Subsidiaries or any third parties or violate the terms of any obligation confidentiality provisions in any agreement with a third party entered into prior to the date of this Agreement if Linde or Praxair, as the case may be, shall have used reasonable best efforts (without payment of any consideration, fees or expenses) to (A) obtain the consent of such third party with respect to confidentiality such inspection or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilege, the attorney work product doctrine or any other applicable privilege; disclosure or (iiiB) violate any Legal Requirement, including any Covid-19 Measure; provided that provide such information in each case of clauses (i)a permitted manner, (ii) and result in a violation of applicable Laws, including any fiduciary duty or Antitrust Laws, (iii) such party shall inform waive the other party protection of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilegeprivilege or (iv) result in the disclosure of any sensitive or personal information that would expose Linde or Praxair, work product doctrine as the case may be, or any other applicable privilege, of its Subsidiaries to the parties understand and agree that they have a commonality risk 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 privilegeliability. 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) No exchange of information or investigation by DISH pursuant to this Section 6.5 shall affect, modify or EchoStar or any of their respective Representatives shall affect waive or be deemed to affect, modify or waive the representations and warranties any representation or warranty of EchoStar Linde or DISH, respectively, Praxair set forth in this Agreement. All requests for information made pursuant to this Section 6.5 shall be directed to an executive officer of Linde or Praxair, as the case may be, or such Person as may be designated by either of their executive officers, as the case may be, with a copy to the General Counsel of such party. All such information shall be governed by the terms of the Confidentiality Agreement.
Appears in 1 contract
Access. (a) Upon reasonable noticeFrom the date hereof until the Closing Date, subject to Applicable Law and the Confidentiality Agreement, each of DISH the Company, on the one hand, and EchoStar Parent, on the other hand, shall (i) give the other party, its counsel, financial advisors, auditors and other authorized representatives during Working Hours reasonable access to the offices and properties (including for the purposes of performing a non-invasive visual environmental site assessment), and to copies of books and records, of such party and its Subsidiaries; (ii) furnish to the other party, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and any other information relating to the businesses of such party and its Subsidiaries as such Persons may reasonably request; and (iii) instruct the employees, counsel and financial advisors of such party to cooperate with the other party in its investigation of the businesses of such party and its Subsidiaries. Any investigation pursuant to this Section 5.08 shall be conducted in such manner as not to interfere unreasonably with the conduct of the businesses of such party and its Subsidiaries and the other party and all of its representatives, agents, consultants, and other advisors shall comply with all health and safety policies, procedures, and requirements applicable to the assets and properties being accessed during such investigations. Notwithstanding the foregoing, (A) neither the Company nor Parent shall be required to provide or cause to be provided access to or disclose or cause to be disclosed (1) any personnel records relating to individual performance or evaluations, medical histories or other information that in such party’s good faith opinion is sensitive or the disclosure of which could subject such party or its Affiliates to risk or liability or (2) any information where such access or disclosure would jeopardize the attorney-client or work product privilege, contravene any Applicable Law or contravene any confidentiality undertaking; and (B) prior to the Closing Date, neither party shall have the right to perform or cause to be performed any invasive or subsurface investigations of the properties of the other party or any of its Subsidiaries, including any sampling or testing of the air, soil, surface water, groundwater, building materials or other environmental media.
(b) From the date hereof through the Closing Date, without the other party’s prior written consent, neither Parent nor the Company shall, and shall cause each its Affiliates not to, contact any customers, vendors, suppliers or other third parties having business relationships with the other party or its Subsidiaries, other than in the ordinary course of their respective such party’s and its Affiliates’ businesses consistent with past practice, so long as any such contact does not relate to this Agreement or the transactions contemplated hereby, and is otherwise conducted in compliance with the terms of the Confidentiality Agreement.
(c) On and after the Closing Date, Parent will, and will cause the Surviving Company and its Subsidiaries to, (i) maintain the books and records of the business of the Company and its Subsidiaries for a period of seven years following the Closing Date and (ii) for a period of seven years following the Closing Date, upon reasonable written notice and during Working Hours, afford to the other party Equityholders’ Representative and the other party’s Representatives its agents reasonable accessaccess to (A) properties, during normal business hours upon prior notice throughout copies of books and records for the period prior to Closing and (B) employees and auditors of the Effective Timebusiness of the Surviving Company and its Subsidiaries, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, in each of DISH and EchoStar shall furnish promptly case to the extent necessary to permit the Equityholders’ Representative to perform or satisfy any legal or regulatory obligation relating to any period on or before the Closing Date or for any other party all available information concerning its reasonable business as DISH or EchoStarpurpose. Notwithstanding the foregoing, as the case may be, may reasonably request; provided, however, that each party Parent shall not be required to permit any inspection provide access or other access, disclose information to the extent that such 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) disclosure would jeopardize protections afforded such party under the attorney-client privilege, the attorney work product doctrine privilege or contravene 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinApplicable Law.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Talos Energy Inc.)
Access. During the period from the Execution Date through the earlier of the Effective Time or the termination of this Agreement pursuant to Section 9.1 (a) Upon reasonable noticethe “Pre-Closing Period”), each of DISH and EchoStar shall, and the Company shall cause each of their respective Subsidiaries to, afford to the other party officers, employees and authorized representatives of Parent (including independent public accountants, financial advisors, environmental consultants and attorneys) reasonable access under the other party’s Representatives reasonable access, supervision of appropriate personnel of the Company during normal business hours upon prior notice throughout the period prior (and subject to receipt of reasonable notice) to the Effective Time, to their respective personneloffices, properties, Contractsemployees and other service providers, filings with Governmental Entities and books scientific, business and financial records and, during such period, each of DISH the Acquired Companies to the extent Parent shall deem necessary or desirable and EchoStar shall furnish promptly to the other party all available Parent or their authorized representatives such additional information concerning the assets, properties, operations and business of the Acquired Companies as shall be reasonably requested, including all such information reasonably requested by Parent as shall be necessary to enable Parent or its business as DISH or EchoStarrepresentatives to verify the accuracy of the representations and warranties contained in this Agreement, as to verify that the case may becovenants of the Acquired Companies contained in this Agreement have been complied with and to determine whether the conditions set forth in Section 6 have been satisfied. Notwithstanding the foregoing, may reasonably request; provided, however, that each party the Company shall not be required to permit any inspection provide access or other accessdisclose information to the extent such access or disclosure would, or to disclose any information, that in the Company’s reasonable judgment (based on the advice of such party would: (i) violate any obligation of such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under outside counsel), waive 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 (iii) such party shall inform the other party privilege of the nature of the information being withheld, Company and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree shall reasonably cooperate to provide 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 all reasonably requested information that is entitled to protection under the attorney-client privilege, work product doctrine or any other applicable privilege shall remain be entitled to such protection under these privileges, this Agreement and the joint defense doctrine.
(c) ; provided, that in the event that the relies on this sentence to withhold access or disclosure, the Company shall, to the extent permitted by Law and the protection of such attorney-client privilege, promptly notify Parent of the nature of the withheld information and provide Parent of a reasonable opportunity to seek an appropriate remedy or waive compliance with the terms of this Agreement. Parent agrees that such investigation shall be conducted in such a manner as to not interfere unreasonably with the operations of the Acquired Companies. No exchange of information investigation made by Parent or investigation by DISH or EchoStar or any of their respective Representatives its representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISHthe Acquired Companies hereunder. During the Pre-Closing Period, respectivelythe Company shall, set forth in this Agreementif reasonably requested by Parent, use its commercially reasonable efforts to introduce Parent to collaborating institutions and individuals, customers and suppliers of the Acquired Companies for the purpose of facilitating the post-Closing integration of the Acquired Companies and their businesses into that of Parent.
Appears in 1 contract
Sources: Agreement and Plan of Merger (PTC Therapeutics, Inc.)
Access. (a) Upon reasonable noticeFollowing the Closing, each of DISH until the Audited Closing Financial Statements and EchoStar the Audited Closing Net Equity Statement become the Final Closing Financial Statements, Purchaser shall, and shall cause each of their respective Subsidiaries its Affiliates to, afford to the other party and the other party’s Representatives provide reasonable access, access on reasonable notice during normal business hours upon prior notice throughout the period prior to ABB’s employees and representatives to the Effective TimeAcquired Group’s and each member of the Acquired Group’s respective offices, employees agents, accountants (including the Business Auditors) and actuaries and to their respective personnelpremises, properties, Contractsbooks, filings with Governmental Entities accounting records and books and records and, during such period, each other documents (including supporting contractual documentation) of DISH and EchoStar shall furnish promptly the Acquired Group or available to the other party all available information concerning Acquired Group reasonably required for the purpose of agreeing or settling any dispute in relation to the Audited Closing Financial Statements or the Audited Closing Net Equity Statement and allow ABB to take copies of such documents. Neither Purchaser nor any of its business as DISH or EchoStar, as the case may be, may reasonably request; provided, however, that each party Affiliates shall not be required to permit under any inspection or other access, or obligation to disclose to ABB’s employees or representatives any informationinformation the disclosure of which, that in according to the reasonable judgment advice of such party would: (i) violate any obligation of such party with respect to Purchaser’s legal counsel, is restricted by confidentiality obligations or privacy; (ii) applicable Law or would jeopardize protections afforded such party under the attorney-client legal privilege, if any, accorded to any documents produced or prepared by the attorney work product doctrine legal representatives of Purchaser 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinAffiliates.
(b) To Prior to the extent that any Closing, and following delivery of the information or material furnished Audited Closing Financial Statements and the Audited Closing Net Equity Statement pursuant to this Agreement may include material subject to the attorney-client privilegeSection 3.4.2, 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 toABB shall, and shall notcause its Affiliates to provide reasonable access on reasonable notice during normal business hours to Purchaser’s auditors, waive employees and representatives to the Acquired Group’s and each member of the Acquired Group’s respective officers, employees, agents, accountants (including the Business Auditors) and actuaries and to the premises, properties, books, accounting records and other documents (including supporting contractual documentation and the work papers of the Business Auditors relating to the audit of the Financial Statements and the Audited Closing Financial Statements, provided that Purchaser’s auditors, employees and representatives have signed any release letter reasonably required by the Business Auditors in connection therewith) of the Acquired Group or diminish available to the Acquired Group reasonably required for the purpose of reviewing the Audited Closing Financial Statements and the Audited Closing Net Equity Statement and/or the purpose of agreeing or settling any dispute in any way relation to the confidentiality Audited Closing Financial Statements or the Audited Closing Net Equity Statement and allow Purchaser and its auditors to take copies of such material or its continued protection under the attorney-client privilege, work product doctrine or any other applicable privilegedocuments. 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) No exchange of information or investigation by DISH or EchoStar Neither ABB or any of their respective Representatives its Affiliates shall affect be under any obligation to disclose to Purchaser’s auditors, employees and representatives any information the disclosure of which, according to the advice of ABB’s legal counsel, is restricted by confidentiality obligations or be deemed applicable Law or would jeopardize the legal privilege, if any, accorded to affect, modify any documents produced or waive prepared by the representations and warranties legal representatives of EchoStar ABB or DISH, respectively, set forth in this Agreementits Affiliates.
Appears in 1 contract
Sources: Purchase Agreement (Abb LTD)
Access. (a) Upon reasonable noticeprior notice and subject to applicable Legal Requirements, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, the Selling Companies will afford to the officers, employees, accountants, counsel and other party and the other party’s Representatives representatives of Purchasers, reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective TimeClosing, to their respective personnel, all of the properties, Contractsbooks, filings with Governmental Entities and books contracts, commitments and records of the Selling Companies relating to the Transferred Assets or the Business, and, during upon prior notice and approval by the Selling Companies (which shall not be unreasonably withheld), access to all employees, customers, and suppliers of the Selling Companies, as may be reasonably requested by the Purchasers. During such period, each of DISH and EchoStar the Selling Companies shall promptly furnish promptly to the Purchasers and their representatives all other party all available information concerning its business as DISH or EchoStar, the Transferred Assets as the case may be, Purchasers may reasonably request; provided. The parties will hold any such information which is nonpublic in confidence in accordance with the Confidentiality Agreement, howeverdated May 29, that each party 2009, between Ronson Corporation and Zippo Manufacturing Company (the “Confidentiality Agreement”). Any investigation pursuant to this Section 7.3 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Business and shall be subject to such reasonable restrictions the Selling Companies shall deem necessary for such purpose. Purchasers shall perform no sampling of soil or other substrate, groundwater or surface water without Selling Companies’ written approval, which shall not be required unreasonably withheld, conditional or delayed, provided that Selling Companies hereby consent to permit any inspection or other access, or to disclose any information, the sampling proposed on Schedule 7.6 of the Disclosure Memorandum. Purchasers agree that in the reasonable judgment of such party would: (i) violate the results of any obligation of such party sampling shall be held in accordance with respect to confidentiality or privacythe Confidentiality Agreement; (ii) jeopardize protections afforded Purchaser and Purchasers’ representatives shall not report the results of any such party sampling to any Person, including without limitation, any Governmental Authority and Purchasers shall not retain a Licensed Site Remediation Professional as defined under the attorney-client privilegeEnvironmental Laws of the State of New Jersey, it being understood that Purchasers may retain Environ Corp., provided that Environ may not disclose the attorney work product doctrine results of Purchasers’ investigation to any Licensed Site Remediation Professional in the employ of Environ or any other applicable privilegeperson other than Purchasers and Purchasers’ representatives who are subject to the confidentiality provisions herein; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) prior to Closing, neither Purchasers nor any of Purchasers’ representatives shall provide the results of any such party shall inform sampling or other environmental investigation after the other party date hereof to the Selling Companies or any representative of the nature Selling Companies except upon a written request from the Selling Companies to the Purchasers to obtain such results. Purchasers shall indemnify the Selling Companies for all Liabilities arising out of the negligence or willful misconduct of Purchasers’ agents’ entry onto the Real Property. Prior to any sampling, Purchasers shall provide the Selling Companies with evidence of insurance reasonably satisfactory to the Selling Companies. No information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information or knowledge obtained by each party and its Representatives in any investigation pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information 7.3 or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives otherwise shall affect or be deemed to affect, modify any representation or waive the representations and warranties of EchoStar or DISH, respectively, set forth warranty contained in this AgreementAgreement or the Disclosure Memorandum or the conditions to the obligations of the parties to consummate the transaction contemplated by this Agreement or any Related Agreement provided, however, the Purchasers shall notify in writing the Selling Companies if any of their officers who have had active involvement in the negotiation of the transactions contemplated hereby has actual knowledge of information that causes a representation or warranty to be false or misleading, subject to the limitations on disclosure of the results of any environmental sampling or other investigation as provided in this Section 7.3.
Appears in 1 contract
Access. (a) Upon reasonable notice, each of DISH and EchoStar 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 During the period prior commencing on the date of this Agreement and continuing until the earlier to occur of the termination of this Agreement pursuant to Article VIII and the Effective Time, the Company shall (and shall cause its Subsidiaries to) afford Parent and its Representatives reasonable access during normal business hours, upon reasonable notice, to their respective personnel, the properties, Contracts, filings with Governmental Entities and books and records and personnel of the Company and its Subsidiaries and, during such period, each of DISH the Company shall (and EchoStar shall cause its Subsidiaries to) furnish reasonably promptly to the other party Parent all available information (financial or otherwise) concerning its business business, properties and personnel (including for retention planning) as DISH or EchoStar, as the case may be, Parent may reasonably request, in each case solely for the purpose of consummating the Transactions or for reasonable integration planning purposes; provided, however, that each party shall not be required the Company may restrict or otherwise prohibit access to permit any inspection documents or other access, information to the extent that (a) any applicable Law requires the Company or its Subsidiaries to disclose any restrict or otherwise prohibit access to such documents or 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that Company reasonably determines access to such documents or information would result in a waiver of any of the information or material furnished pursuant to this Agreement may include material subject to the 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 applicable to such protection under these privileges, this Agreement and the joint defense doctrine.
documents or information or (c) No exchange such documents or information relate to the evaluation or negotiation of this Agreement, the Transactions or, subject to Section 5.2 and Section 5.3, an Acquisition Proposal or Superior Proposal. In the event that the Company does not provide access or information in reliance on clauses (a) or (b) of the preceding sentence, it shall use its reasonable best efforts to communicate the applicable information to Parent in a way that would not violate any applicable Law or waive such a privilege. Any investigation conducted pursuant to the access contemplated by DISH this Section 6.5 (i) shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company or EchoStar its Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of their respective its Subsidiaries and (ii) shall be subject to 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 or any of its Representatives shall affect or be deemed in connection with any investigation conducted pursuant to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth access contemplated by this Section 6.5. Nothing in this AgreementSection 6.5 shall be construed to require the Company or any of its Subsidiaries or Representatives of any of the foregoing to prepare any reports, analyses, appraisals or opinions that are not readily available.
Appears in 1 contract
Access. (a) Upon Subject to applicable Law relating to the sharing of information, upon reasonable notice, and except as may otherwise be required by applicable Law, NYSE Group and Euronext each of DISH and EchoStar shall, shall (and shall cause each of their respective its Subsidiaries to) afford the other’s officers, afford to the employees, counsel, accountants, consultants and other party and the other party’s Representatives authorized representatives (“Representatives”) reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested; provided that no investigation pursuant to this Section 7.5 shall affect or be deemed to modify any representation or warranty made by NYSE Group or Euronext; provided, howeverfurther, that each party the foregoing shall not be required require NYSE Group or Euronext (i) to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such party would: (i) NYSE Group or Euronext, as the case may be, would result in the disclosure of any trade secrets of third parties or violate any obligation of such party its obligations with respect to confidentiality if NYSE Group or privacy; (ii) jeopardize protections afforded Euronext, as the case may be, shall have used reasonable best efforts to obtain the consent of such third party under the attorney-client privilege, the attorney work product doctrine to such inspection or any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measure; provided that in each case of clauses (i)disclosure, (ii) and to disclose any privileged information of NYSE Group or Euronext, as the case may be, or any of its Subsidiaries, (iii) such party shall inform in the case of NYSE Group, (x) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by NYSE Group or any of its Subsidiaries or any other party regulatory activities conducted by NYSE Group or any of its Subsidiaries that the nature Chief Executive Officer of NYSE Regulation, Inc. determines, in his or her sole discretion, is confidential and inappropriate to disclose to Euronext, or (y) to permit any inspection, or to disclose any information relating to any regulatory enforcement, investigations or inquiries conducted by New York Stock Exchange LLC or NYSE Arca, Inc. or any other regulatory activities that the information being withheldChief Executive Officer of NYSE Regulation, Inc. determines, in his or her sole discretion, is confidential and shall use its reasonable best efforts inappropriate to make alternative arrangements with respect disclose to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyEuronext. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 7.5 shall be subject directed to an executive officer of NYSE Group or Euronext, as the case may be, or such Person as may be designated by either of their executive officers, as the case may be, with a copy to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 General Counsel 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 privilegeparty. All such information that is entitled to protection under shall be governed by the attorney-client privilege, work product doctrine or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and terms of the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
Appears in 1 contract
Access. (ai) Upon reasonable notice, each of DISH and EchoStar shallexcept as may otherwise be required by applicable Laws, and shall cause each of their respective Subsidiaries to, afford to the other party Seller and the Transferred Subsidiaries shall afford the officers, employees, counsel, accountants and other party’s Representatives authorized representatives (including representatives of entities providing or arranging financing) (“Representatives”) of Purchasing LLC reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective TimeClosing, to their respective personnel, properties, Contractsbooks, filings with Governmental Entities and books Contracts and records to the extent related to the Business and, during such period, each of DISH Seller and EchoStar its Affiliates shall furnish promptly to Purchasing LLC all such information, including monthly financial information and information on an ongoing basis on working capital of the Business and any other party all regular financial reports that as are typically available information concerning for review by Beneficiary or the Trustee, and reasonable access to the Employees, in each case to the extent related to the Business as Purchasing LLC or its business as DISH or EchoStar, as the case may be, Representatives may reasonably requestrequest and Seller and its Affiliates shall further cooperate with Purchasing LLC and its Representatives (at Purchasing LLC’s expense) and provide reasonable access, during normal business hours as Purchasing LLC may request for the purpose of Purchasing LLC obtaining title insurance policies or commitments (as applicable), land surveys, physical inspections and engineering and structural reports with respect to each site included within the Real Property and the Mansion Property; provided, howeverthat, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives no investigation pursuant to this Section 4.8(a6.2(b) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affectmodify any representation or warranty made by Seller; and provided, modify further the foregoing shall not require Seller to permit any inspection to disclose any information which would violate applicable Laws (including Competition Laws) based on advice of Seller’s counsel or waive which in the representations reasonable judgment of Seller, would result in the disclosure of any trade secrets of third parties or violate any obligation of Seller with respect to confidentiality. All requests for information made pursuant to this Section 6.2(b)(i) shall be directed to an executive officer of Seller or such Person as may be designated by any such officer. All such information shall be governed by the terms of the Confidentiality Agreement;
(ii) Upon reasonable notice, and warranties except as may otherwise be required by applicable Laws, the Purchasers shall afford the Representatives of EchoStar Seller reasonable access, during normal business hours throughout the period prior to Closing, to their respective properties, books, Contracts and records to the extent related to Publico and, during such period, the Purchasers shall, and shall cause their respective Affiliates to, furnish promptly to Seller all such information, including monthly financial information and information on an ongoing basis on working capital of Publico and any other regular financial reports of Publico that are typically available for their review, and reasonable access to the Employees, in each case to the extent related to the acquisition of the Preferred Stock by Seller, as Seller or DISHits Representatives may reasonably request and the Purchasers shall, respectivelyand shall cause their respective Affiliates to, further cooperate with Seller and its Representatives (at Seller’s expense) and provide reasonable access, during normal business hours as Seller may request for the purposes of conducting due diligence; provided, that, the foregoing shall not require the Purchasers to disclose any information which would violate applicable Laws (including Competition Laws) based on advice of Purchasers’ counsel or which in the reasonable judgment of the Purchasers, would result in the disclosure of any trade secrets of third parties or violate any obligation of the Purchasers with respect to confidentiality. All requests for information made pursuant to this Section 6.2(b)(ii) shall be directed to an executive officer of Purchasing LLC or such Person as may be designated by any such officer. All such information shall be governed by the terms of the Confidentiality Agreement; and
(iii) Purchasing LLC and Seller agree to use their reasonable best efforts to obtain title insurance policies and endorsements, as necessary to satisfy the condition contained in Section 7.2(k), and Seller shall execute and deliver to the title company all affidavits, certificates and other instruments as are customarily and reasonably requested by the title company to cause the title company to issue the New Title Insurance Policies and the Title Endorsements.
(iv) The cost of obtaining the policies and endorsements necessary to satisfy to conditions set forth in this AgreementSection 7.2(k) shall be paid 85% by Purchasing LLC and 15% by Seller.
Appears in 1 contract
Sources: Contribution and Exchange Agreement (Sports Entertainment Enterprises Inc)
Access. (a) Upon On and after the Closing Date, Buyer shall retain and will cause the Company and each Subsidiary to afford promptly to Seller and its agents reasonable noticeaccess to their properties, each of DISH books, records, employees and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford auditors to the other party extent necessary to permit Seller to determine any matter relating to its rights and obligations hereunder or to any period ending on or before the other party’s Representatives reasonable access, during normal Closing Date; provided that any such access by Seller shall not unreasonably interfere with the conduct of the business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestBuyer; provided, howeverfurther, that each party Buyer shall not be required to permit any inspection or other access, or to disclose any informationinformation if such disclosure would, that in the Buyer’s reasonable judgment of such party would: discretion, (i) violate jeopardize any obligation of such party with respect to confidentiality attorney-client privilege or privacy; (ii) jeopardize protections afforded such party under contravene any Applicable Laws or binding agreement entered into prior to 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 (iii) such party date hereof. Seller shall inform the other party bear all of the nature of out-of-pocket costs and expenses (including attorneys’ fees and expenses) reasonably incurred in connection with the information being withheldforegoing. Buyer will hold, and shall will use its reasonable best efforts to make alternative arrangements with respect cause its officers, directors, employees, accountants, counsel, consultants, advisors and agents to such information. Each party shall use commercially reasonable security measures hold, in confidence, unless compelled to access the systems disclose by Applicable Law, all confidential documents and information of concerning the other party. All confidential information obtained by each party and its Representatives Company or any Subsidiary provided to it pursuant to this Section 4.8(a) Section. Unless otherwise consented to in writing by Seller, Buyer shall not be subject permitted and shall not permit the Company or any Subsidiary, for a period of five years following the Closing Date, to destroy, alter or otherwise dispose of any material books and records of the Company or any Subsidiary relating to periods beginning on or prior to the Confidentiality Agreement so long Closing Date without first giving reasonable prior written notice to Seller and offering to surrender to Seller such books and records or such portions thereof. The provisions of this Section 6.02 shall cease to apply in the event of a sale or disposition of any Company Entity by Buyer as it satisfies relates to such Company Entity, provided that Buyer has caused the definition subsequent owner(s) of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant such entity to this Agreement may include material subject agree to the 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 obligations similar 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, those set forth in this AgreementSection 6.02.
Appears in 1 contract
Access. Subject to applicable Law, each of JBT and the Company shall (a) Upon and shall cause its Subsidiaries to), upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party Parties and the other party’s their Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Offer Closing Time, to their respective personnel, its properties, Contractsbooks, filings with Governmental Entities and books contracts and records and, during such period, each of DISH shall (and EchoStar shall cause its Subsidiaries to) furnish promptly to the other party Party and its Representatives all available information concerning its business business, properties and personnel as DISH or EchoStar, as the case may be, may reasonably requestbe requested, in each case solely for the purpose of integration and post-Closing planning or furthering the Transaction; provided, however, provided that each party the foregoing provisions shall not be required construed to require either JBT or the Company (or either of their Subsidiaries) to permit any inspection or other accessinspection, or to disclose any information, that in the reasonable judgment of such JBT or the Company, as the case may be, would (a) result in the disclosure of any trade secrets of the JBT Group or the Marel Group, as the case may be, or any third parties or violate the terms of any confidentiality provisions in any agreement with a third party would: entered into prior to the date of this Agreement if JBT or the Company, as the case may be, shall have used reasonable best efforts (without payment of any consideration, fees or expenses) to (i) violate any obligation obtain the consent of such third party with respect to confidentiality such inspection or privacy; disclosure or (ii) jeopardize protections afforded provide such party under information in a permitted manner, (b) result in a violation of applicable Laws, (c) waive the protection of any attorney-client privilegeprivilege or (d) result in the disclosure of any sensitive or personal information that would expose JBT or the Company, as the attorney work product doctrine case may be, 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 (iii) such party shall inform its Subsidiaries to the other party risk of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other partyliability. All confidential requests for information obtained by each party and its Representatives made pursuant to this Section 4.8(a) 7.4 shall be subject directed to an executive officer of JBT or the Company, as the case may be, or such Person as may be designated by either of their executive officers, as the case may be, with a copy to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 General Counsel 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 privilegeparty. All such information shall be governed by the terms of the Confidentiality Agreement, provided that is entitled the Parties agree that the expiration of the Confidentiality Agreement shall be extended 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 later of (1) the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, expiration date set forth in the Confidentiality Agreement, (2) the consummation of the Tender Offer and (3) the date that is two (2) years following the date that this AgreementAgreement is validly terminated in accordance with Section 13.
Appears in 1 contract
Sources: Transaction Agreement (John Bean Technologies CORP)
Access. From the date hereof through the Closing, upon the prior written request of a Party (athe “Requesting Party”), the other Party (the “Disclosing Party”) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party Requesting Party and the other party’s its authorized Representatives (which for purposes of this Section 6.9 shall include potential financing sources of Parent and Buyer) reasonable access, during normal business hours upon prior notice throughout and in such manner as not to unreasonably interfere with normal operation of the period prior business of the Disclosing Party and its Affiliates, to the Effective Time, to their respective personnel, properties, Contractsbooks, filings with Governmental Entities contracts, records and books appropriate officers, employees and records and, during such period, each the independent certified public accountants of DISH the Disclosing Party and EchoStar its Affiliates and shall furnish promptly to the Requesting Party and such authorized Representatives with all financial (including the audit work papers and other party all available records of independent certified public accountants) and operating data and other information concerning the affairs of the Disclosing Party and its business as DISH or EchoStarAffiliates, as the case may be, Requesting Party and its Representatives may reasonably request; provided, however, that each party any such access or furnishing of information shall not be required conducted at the Requesting Party’s expense. The Disclosing Party and its Affiliates shall have the right to permit have a Representative present at all times during any inspection or other accesssuch inspections, 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 privilegeinterviews and examinations. Additionally, 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 (iii) such party Requesting Party shall inform the other party of the nature of the information being withheldhold, and shall use cause its reasonable best efforts Affiliates and Representatives to make alternative arrangements with respect to hold, in confidence all such information. Each party shall use commercially reasonable security measures to access information on the systems terms and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the conditions contained in the Confidentiality Agreement so long as it satisfies and shall use (and shall cause its Affiliates and Representatives to use) such information solely in connection with the definition transactions contemplated by this Agreement. Notwithstanding the foregoing, the Requesting Party shall have no right of “Evaluation Material” contained therein.
access to, and the Disclosing Party and its Affiliates shall have no obligation to provide to the Requesting Party, information relating to (a) any information the disclosure of which would jeopardize any privilege available to the Disclosing Party or its Affiliates relating to such information or would cause the Disclosing Party or its Affiliates to breach a confidentiality obligation or (b) To any information the extent that any disclosure of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have which would result in a commonality violation 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 the joint defense doctrineLaw.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (North American Insurance Leaders, Inc.)
Access. During the Interim Period, the Company will use commercially reasonable efforts to afford Parent and its Representatives reasonable access during normal business hours, upon reasonable advance notice, to the properties, books and records and personnel of the Company Group to the extent reasonably requested by Parent in furtherance of the consummation of the Merger, except that the Company may restrict or otherwise prohibit access to any documents or information to the extent that (a) Upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford any applicable law or regulation requires the Company Group to the other party and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH restrict or EchoStar, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect otherwise prohibit access to such documents or information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
; (b) To the extent that access to such documents or information would give rise to a material risk of waiving any of the information or material furnished pursuant to this Agreement may include material subject to 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 matters and it documents or information; (c) access to a Contract existing as of the date hereof to which the Company Group is their desirea party or otherwise bound would violate or cause a default pursuant to, intention and mutual understanding or give 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 trade secrets of third Persons; provided, however, that the sharing Company will notify Parent in reasonable detail of such material is not intended tothe circumstances giving rise to any non-disclosure pursuant to the foregoing and the Company shall, and shall notcause the Company Subsidiaries to, waive provide such access or diminish in any way the confidentiality disclosure of such material information in the cases of the foregoing subsections (a) or its continued protection under (e) to the attorney-client privilege, work product doctrine or any other applicable privilegemaximum extent possible. All such information that is entitled Nothing in this Section 7.5 will be construed to protection under require 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) No exchange of information or investigation by DISH or EchoStar Company Group or any of their respective its Representatives shall affect to prepare any reports, analyses, appraisals, opinions or other information. Any investigation conducted pursuant to the access contemplated by this Section 7.5 will be deemed conducted in a manner that does not unreasonably interfere with the conduct of the business or operations of the Company Group or create a risk of damage or destruction to affectany 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, modify health and safety measures, and insurance requirements and will not include the right to perform invasive testing, including any air, soils or waive groundwater sampling, including any Phase II environmental assessments. Notwithstanding anything to the representations and warranties of EchoStar or DISH, respectively, set forth 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 or not practicable as a result of any COVID-19 Measure or Force Majeure Event (including COVID-19). 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 7.5.
Appears in 1 contract
Access. (a) Upon reasonable notice, each of DISH The Seller shall afford the Purchaser and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s its Representatives reasonable access, access during normal business hours upon prior notice throughout the period prior to management personnel and financial, title, tax, corporate and legal materials and operating data and information relating to the Effective TimeTarget Companies and the Target Companies’ Assets, to their respective personnel, properties, Contracts, filings with Governmental Entities operations and books Business and records and, during such period, each of DISH and EchoStar shall furnish promptly to the Purchaser such other party all available information concerning its business as DISH or EchoStar, as the case may be, they may reasonably request; provided, however, that each party all requests for such access shall be directed in writing to ▇▇▇▇▇ ▇▇▇▇▇ at ▇▇▇-▇▇▇-▇▇▇▇ and ▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ or such other Person(s) as the Seller may designate in writing from time to time.
(b) Notwithstanding the foregoing, the Purchaser 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 have access to personnel records of the Seller or the Target Companies relating to individual performance or evaluation records, medical histories or other information which in the Seller’s good faith determination is sensitive or the disclosure of which could subject the Seller, the Target Companies or any obligation of such party with respect their respective Affiliates to confidentiality or privacy; risk of liability without prior written consent of the Seller, (ii) jeopardize protections afforded such party under the attorney-client privilege, the attorney work product doctrine conduct any invasive sampling or testing or any soil, surface water, groundwater, building materials or other applicable privilege; environmental media, including the conduct of a Phase II environmental site assessment, or (iii) violate have access to any Legal Requirementinformation if doing so would reasonably likely constitute a breach by the Seller or the Target Companies or any of their respective Affiliates of any contract to which such Person is a party or would reasonably likely constitute a violation of any Applicable Law to which the Seller or the Target Companies or any of their respective Affiliates is subject or which such Person believes in good faith could jeopardize any solicitor client or other legal privilege. The Purchaser shall abide by the safety rules, including any Covid-19 Measure; provided that in each case of clauses (i)regulations, (ii) and (iii) such party shall inform the other party operating policies of the nature Seller and the Target Companies while conducting its due diligence evaluation of the Target Companies.
(c) Neither the Seller nor the Target Companies makes any representation or warranty as to the accuracy of any information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives (if any) provided pursuant to this Section 4.8(a) shall 6.3, and the Purchaser may not rely on the accuracy of any such information, in each case other than as expressly set forth in the representations and warranties contained in ARTICLE 3. All information provided or made available to the Purchaser or any of its Representatives will be subject to the Confidentiality Agreement so long as it satisfies Agreement, which agreement shall remain in full force and effect until the definition of “Evaluation Material” contained thereinClosing and shall thereupon terminate.
(bd) To In connection with the rights of access, examination and inspection granted to the Purchaser under this Section 6.3, (i) the Purchaser waives and releases all claims against the Seller and any of its Affiliates arising in any way therefrom or in any way connection therewith, and (ii) the Purchaser hereby agrees to indemnify, defend and hold harmless the Target Companies, the Seller and any of its Affiliates from and against any and all Damages attributable to personal injury, death or physical property damage to any Representative of the Seller and any of its Affiliates, to the extent that arising out of, resulting from or relating to any of field visit or other due diligence activity conducted by the information Purchaser or material furnished pursuant to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilege, the parties understand and agree that they have a commonality of interest its Representatives 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 Target Companies or diminish otherwise in any way connection with 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, transactions contemplated by this Agreement and the joint defense doctrineAgreement.
(ce) No exchange For a period of information seven years following the Closing Date or investigation for such longer period as may be required by DISH or EchoStar or Applicable Law, the Purchaser shall afford the Seller and its Representatives reasonable access during normal business hours to the books and records relating to the Target Companies relating to periods prior to the Closing Date and the Seller shall have the right to inspect and to make copies of them for any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreementproper purpose.
Appears in 1 contract
Access. (a) Upon reasonable noticeAt 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 X and the Effective Time, each of DISH and EchoStar the Company shall, and shall cause each of their respective the Company Subsidiaries to, afford to the other party Parent and the other party’s its Representatives reasonable access, access during normal business hours hours, upon prior notice throughout the period prior reasonable notice, to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and personnel of the Company and, during such period, the Company shall, and shall cause each of DISH and EchoStar shall the Company Subsidiaries to, furnish promptly to the other party all available Parent and its Representatives any information concerning its business business, Taxes, properties or personnel as DISH or EchoStar, as the case may be, Parent may reasonably request, including (i) 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 (ii) internal monthly consolidated financial statements of the Company and the Company Subsidiaries, to the extent prepared in the ordinary course of business consistent with past practice; provided, however, that each party shall not be required to permit any inspection no information 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information knowledge obtained by each party and its Representatives Parent in any investigation conducted pursuant to the access contemplated by this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives 5.03 shall affect or be deemed to affect, modify any representation or waive warranty of the representations and warranties of EchoStar or DISH, respectively, Company set forth in this AgreementAgreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. 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 changes or developments in the operational matters of the Company and the general status of the ongoing operations of the Company. Any investigation conducted pursuant to the access contemplated by this Section 5.03 shall be conducted in a manner that does not unreasonably interfere with the conduct of the business of the Company and the Company Subsidiaries or create a risk of damage or destruction to any property or assets of the Company or any of the Company Subsidiaries. The terms and conditions of the Confidentiality Agreement 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 5.03.
Appears in 1 contract
Sources: Merger Agreement (Helix TCS, Inc.)
Access. (a) Upon reasonable noticeAfter the Closing and until the seven year anniversary of the Closing Date, each of DISH and EchoStar shallBermudaCo will, and shall will cause each of their respective its Subsidiaries to, afford to give the other party Territory, its Subsidiaries and the other party’s their Representatives reasonable access, during normal business hours and upon prior notice throughout reasonable notice, to all books, documents, information, data, files and other records relating to (i) the period prior operation of the Consulting Business before the Closing, (ii) the Acquired Assets or (iii) the Assumed Liabilities, and to furnish copies thereof, which the Territory, its Subsidiaries or their Representatives reasonably request, including, without limitation, in connection with claims, proceedings, actions, investigations, audits and other regulatory or legal proceedings involving (x) the operation of the Consulting Business, (y) the Acquired Assets or (z) the Assumed Liabilities, and BermudaCo shall furnish reasonable assistance (at the Territory's expense) (including, without limitation, access to personnel) to the Effective Time, to Territory and its Subsidiaries and their respective personnel, properties, Contracts, filings Representatives in connection with Governmental Entities such claims and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestproceedings; provided, however, provided that each party BermudaCo shall not be required to permit any inspection disclose such information if such disclosure would violate applicable law or other accesscontract; and, or to disclose any informationprovided further, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and BermudaCo shall use its reasonable best efforts to make alternative arrangements with respect obtain the required consents necessary to permit the timely disclosure of such information. Each party BermudaCo shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 tonot, and shall notnot permit any of its Subsidiaries to, waive or diminish in destroy any way such records prior to the confidentiality seventh anniversary of the Closing Date without providing the Territory with notice detailing the contents of such material or its continued protection under records, and providing the attorney-client privilegeTerritory with the opportunity to obtain such records, work product doctrine or any other applicable privilegeat least 120 days prior to the destruction thereof. All such information that is entitled to protection under BermudaCo shall permit, promptly upon reasonable request, 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) No exchange of information or investigation by DISH or EchoStar Territory or any of their respective Representatives shall affect or be deemed its Subsidiaries to affectuse original copies of any such records for purposes of litigation, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreementprovided such records are promptly returned to BermudaCo following such use.
Appears in 1 contract
Sources: Rollup Agreement (PWCC LTD)
Access. (a) Upon reasonable notice, each of DISH and EchoStar 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 or such other times reasonably requested by Parent or AudioCodes (i) make available for inspection by Parent, AudioCodes and their Representatives all of the period prior Company’s and each of its Subsidiaries’properties, assets, books, records (including the work papers of the Company’s external accountants to the Effective Time, to extent such materials are in the Company’s possession or can be obtained by the Company or its Subsidiaries under their respective personnel, properties, Contracts, filings rights granted pursuant to applicable contracts or agreements with Governmental Entities such accountants) and books Contracts and records and, during such period, each any other materials reasonably requested by any of DISH and EchoStar shall furnish promptly them relating to the other party all available information concerning Company or any of its business Subsidiaries at such times as DISH Parent or EchoStar, as the case may be, AudioCodes 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 make available to Parent, AudioCodes and their Representatives the officers, other senior management and Representatives of the Company and its Subsidiaries for interviews, at such party under times as Parent, AudioCodes and their Representatives may reasonably request, to discuss the attorney-client privilegeinformation furnished to Parent, AudioCodes and their Representatives and otherwise discuss the attorney work product doctrine or any other applicable privilegeCompany’s and each of its Subsidiaries’ existing and prospective businesses and assets and liabilities; or (iii) violate use its commercially reasonable efforts to assist in gaining reasonable access for Parent, at such times as the Parties mutually agree, to the Company’s and each of its Subsidiaries’ lenders, creditors, lessors, lessees, licensors, licensees, officers, employees, developers, contractors, distributors, vendors, clients, customers, suppliers, Affiliates or other Persons having a material business relationship with the Company or any Legal Requirementof its Subsidiaries; and (iv) make available to Parent, AudioCodes and their Representatives such information and materials relating to the Company and its Subsidiaries as are necessary or appropriate in order to prepare and file reports and registration statements with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”) and under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including using commercially reasonable efforts to assist Parent and AudioCodes in obtaining any Covid-19 Measure; provided consents required from the Company’s independent public accountants in order to file such reports and registration statements. Any and all such investigations shall be conducted in a manner that in each case of clauses (i), (ii) and (iii) such party shall inform does not unreasonably interfere with the other party conduct of the nature business of the Company or any of its Subsidiaries and minimizes any disruption to the conduct of such business. Any information being withheldthat is provided by the Company to Parent, AudioCodes or their Representatives in connection with the transactions contemplated by this Agreement shall constitute “Confidential Information” as such term is defined, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the exceptions set forth, in the Confidentiality Agreement so long dated as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the attorney-client privilegeAugust 18, work product doctrine or any other applicable privilege2005, 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 between Parent and the joint defense doctrineCompany (the “Confidentiality Agreement”).
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Audiocodes LTD)
Access. (a) Upon From the date hereof until the Closing Date, the Companies shall (i) give Buyer, its counsel, financial advisors, auditors and other authorized representatives during Working Hours reasonable notice, each of DISH access to the offices and EchoStar shallproperties, and shall cause each to copies of their respective Subsidiaries tobooks and records, afford of the Companies; (ii) furnish to Buyer, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and any other information relating to the other party and businesses of the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during Companies as such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, Persons may reasonably request; providedand (iii) instruct the employees, howevercounsel and financial advisors of the Companies to cooperate with Buyer in its investigation of the businesses of the Companies. Any investigation pursuant to this Section 6.04 shall be conducted in such manner as not to interfere unreasonably with the conduct of the businesses of the Companies. Notwithstanding the foregoing, that each party (A) the Companies shall not be required to permit any inspection provide or other access, cause to be provided access to or disclose or cause to disclose any information, that in the reasonable judgment of be disclosed information where such party would: (i) violate any obligation of such party with respect to confidentiality access or privacy; (ii) disclosure would jeopardize protections afforded such party under the attorney-client privilege, the attorney work product doctrine contravene any Applicable Law or contravene any other applicable privilege; or (iii) violate any Legal Requirement, including any Covid-19 Measureconfidentiality undertaking; provided that in each case of clauses (i), (ii) and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party Companies shall use commercially reasonable security measures efforts to access provide the systems information sought in such investigation in a manner that does not jeopardize such attorney-client privilege or contravene any such Applicable Law or confidentiality undertaking; and information (B) prior to the Closing Date, Buyer shall have no right to perform or cause to be performed any invasive or subsurface investigations of the properties of the Companies, including any sampling or testing of the air, soil, surface water, groundwater, building materials or other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained thereinenvironmental media.
(b) To On and after the Closing Date, Buyer will, and will cause the Companies to, (i) maintain the books and records of the business of the Companies for a period of eight years; (ii) upon reasonable written notice and during Working Hours, afford to Seller and its agents reasonable access to (x) properties, copies of books and records for the period prior to Closing and (y) employees and auditors of the business of the Companies, in each case to the extent necessary to permit Seller to (A) perform or satisfy any legal or regulatory obligation relating to any period on or before the Closing Date or for any other reasonable purpose or (B) conduct, or if applicable, defend, any litigation or other legal proceedings (including the matters set forth on Section 6.04(b) of the Disclosure Schedule) involving Seller or any of its Affiliates relating to matters that occurred prior to the Closing (including making employees available as witnesses, for depositions and/or to prepare for any legal proceeding). In addition, on and after the Closing Date, Buyer will, and will cause the Companies to, reasonably cooperate with Seller’s conduct of the matter set forth on Section 6.04(b) of the Disclosure Schedule. Notwithstanding the foregoing, Buyer shall not be required to provide access or disclose information to the extent that any of the information such access or material furnished pursuant to this Agreement may include material subject to disclosure would jeopardize the attorney-client privilege, work product doctrine privilege or contravene any other applicable privilege, Applicable Law or confidentiality undertaking; provided that Buyer shall use commercially reasonable efforts to provide the parties understand and agree information sought in such investigation in a manner that they have a commonality of interest with respect to does not jeopardize 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 privilege or contravene any other applicable privilege. All such information that is entitled to protection under the attorney-client privilege, work product doctrine Applicable Law or any other applicable privilege shall remain entitled to such protection under these privileges, this Agreement and the joint defense doctrineconfidentiality undertaking.
(c) No exchange From the date hereof until the Closing Date, without Seller’s prior written consent, Buyer shall not, and shall cause its Affiliates and its and their representatives not to, contact any customers, vendors, distributors or suppliers of, or other third parties having business relationships with, the Companies, other than in the ordinary course of information Buyer’s or investigation by DISH its Affiliates’ businesses where such contact does not relate to or EchoStar discuss the businesses of the Companies, this Agreement or any other Transaction Agreement or the transactions contemplated hereby or thereby and is in any event conducted in compliance with the terms of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Confidentiality Agreement.
(d) Section 6.04 shall not apply with respect to Tax Returns or Tax books and records (including work papers and other documents or information related thereof).
Appears in 1 contract
Access. (a) Upon reasonable notice, each the Shareholders shall make themselves (but not other employees of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s Representatives reasonable access, Salvage Disposal) reasonably available during normal business hours upon prior notice throughout to Purchaser and its authorized representatives (including Purchaser’s financing sources). Upon reasonable notice, the period prior Shareholders shall cause Salvage Disposal to afford Purchaser and its authorized representatives (including Purchaser’s financing sources), access to the Effective Timeoffices, to their respective personnelfacilities, properties, Contractsfiles, filings with Governmental Entities and books and records and, during such period, each Records of DISH Salvage Disposal. Any investigation or activities pursuant to this Section 7.02 shall be conducted at and EchoStar shall furnish promptly subject to the other party all available information concerning its business direction and sole discretion of the Shareholders’ Representative, and at such times and in such manner as DISH or EchoStar, 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 not to interfere with the conduct 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)Business, (ii) and not to result in the disclosure to any employees of Salvage Disposal (iiiother than the Shareholders) such party shall inform the other party existence of this Agreement, the terms or conditions hereof, or the fact that the transactions contemplated hereby may be undertaken by the parties. Without limiting the generality of the nature foregoing, Purchaser shall not communicate, directly or indirectly, in any manner whatsoever, with any employees or personnel of Salvage Disposal (other than the information being withheldShareholders), and shall use any visits by Purchaser or its reasonable best efforts authorized representatives to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information offices, facilities, or offices of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) Salvage Disposal shall be conducted outside of ordinary business hours. Notwithstanding the foregoing, Purchaser shall not have access to personnel records of Salvage Disposal relating to medical histories or other similar medical information the disclosure of which could subject Salvage Disposal to the Confidentiality Agreement so long as it satisfies the definition material risk of “Evaluation Material” contained thereinliability.
(b) To For a period of the extent longer of (i) five (5) years after the Closing or (ii) Purchaser’s applicable retention policy for such Files and Records (and, for tax purposes, for a period of seven (7) years after the Closing), Purchaser will retain the Files and Records at its sole cost and expense and shall permit the Shareholders’ Representative or its representatives to have access for inspection and/or copying, during regular business hours and upon reasonable advance notice, to all Files and Records of Salvage Disposal and ▇▇▇▇ (including access to personnel familiar therewith) for any purpose including, without limitation, in relation to taxes or regulatory matters, and shall furnish, or cause to be furnished, to the Shareholders’ Representative such other information that is available as such Shareholders’ Representative shall from time to time reasonably request. If Purchaser, at any time intends to transfer, directly or indirectly, any of the information or material furnished pursuant Files and Records to this Agreement may include material subject a Third Person, then Purchaser will (i) provide advance written notice to the attorney-client privilegeShareholders’ Representative of such intended transfer, work product doctrine or any other applicable privilege(ii) obligate the transferee to maintain the Files and Records as herein required and (iii) retain access to the Files and Records for the benefit of Purchaser, the parties understand Shareholders and agree that they have a commonality of interest with respect their respective representatives. From time to such matters and it is their desire, intention and mutual understanding that the sharing of such material is not intended totime, and shall notwithout further consideration, waive or diminish Purchaser will deliver to the Shareholders’ Representative such Files and Records and take such actions as the Shareholders’ Representative may reasonably request in any way order to effectively implement and carry into effect 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, transactions contemplated by this Agreement and the joint defense doctrineAgreement.
(c) No exchange investigation by, or information furnished to or obtained by, Purchaser or its representatives, whether prior to or following the date of information this Agreement, shall modify, limit or investigation by DISH or EchoStar or any of their respective Representatives shall otherwise affect or be deemed to affect, modify or waive the Shareholders’ representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement, or limit the remedies available to Purchaser hereunder. Purchaser agrees that, notwithstanding its due diligence review of Salvage Disposal’s Records and other information and discussions with representatives of Shareholders and Salvage Disposal, Shareholders’ representations and warranties in Article IV hereof are the sole and exclusive representations and warranties by Shareholders in connection with the transactions under this Agreement.
(d) The Confidentiality Agreement shall apply with respect to information furnished or made available thereunder and hereunder and any other activities contemplated thereby or hereby. Notwithstanding anything contained in this Agreement to the contrary, neither the Shareholders nor Salvage Disposal shall be under any obligation, pursuant to this Agreement or otherwise, to provide Purchaser or its representatives access to any (i) information or Records subject to Third Person confidentiality agreements for which a consent or waiver cannot be secured by the Shareholders or Salvage Disposal after reasonable efforts, (ii) information or Records which, if disclosed, would violate an attorney-client or other privilege or might constitute a waiver of rights as to attorney work product or attorney-client or other privileged communications, or (iii) information or Records (including, for the avoidance of doubt, any Contracts to be delivered or disclosed pursuant to Section 4.09) which the Shareholders or Salvage Disposal could reasonably be prohibited from disclosing pursuant to Law. Notwithstanding any other provision hereof, including Section 15.10, the Confidentiality Agreement shall survive the Closing and continue in full force and effect in accordance with its terms.
Appears in 1 contract
Access. During the Pre-Closing Period:
(a) Upon Except to the extent prohibited by applicable Law, the Company shall provide, and cause its Service Providers, attorneys, accountants and other agents to provide, to Parent and its accounting, legal and other representatives as well as their respective officers, employees, affiliates and other agents, access at all reasonable times and during normal business hours, upon reasonable notice, each of DISH and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the Company’s facilities and personnel and to business, financial, legal, tax, compensation and other party data and information concerning the other partyCompany’s Representatives reasonable accessaffairs and operations as Parent deems reasonably necessary or advisable. Notwithstanding the foregoing, during normal business hours upon prior notice throughout the period prior Company shall not be required to provide access to any information to the Effective Time, extent that it reasonably believes that it may not provide to their respective personnel, properties, Contracts, filings Parent by reason of contractual confidentiality undertakings with Governmental Entities and books and records and, during such period, each a third party in effect as of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, as the case may be, may reasonably requestdate of this Agreement; provided, however, that each party the Company shall not be required to permit any inspection or other access, or to disclose any information, advise Parent that in the reasonable judgment of Company is withholding 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect promptly communicate to Parent or its applicable representatives the substance of any such information. Each party shall use commercially reasonable security measures to access the systems and information materials, whether by redacting parts of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement such materials or otherwise, so long as it satisfies the definition of “Evaluation Material” contained thereinthat disclosure would not violate such confidentiality obligations.
(b) To Upon Parent’s request, Parent and its officers, directors, managers, employees, attorneys, accountants, consultants, financial advisors and other agents shall be provided with reasonable access to the extent Company’s, agents, consultants and any third party who may interact with a Governmental Authority on the Company’s behalf, provided that any such access shall require the consent of the information or material furnished pursuant Sole Member and the Sole Member’s designated representative’s shall be entitled to this Agreement may include material subject to the 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 participate 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 doctrinediscussions.
(c) No exchange The Company shall report to Parent, as and when reasonably requested, concerning the status of the operations, finances and affairs of the Company and deliver to Parent periodic financial reports in the form that it customarily prepares for its internal purposes and, if available, unaudited statements of the financial position of the Company as of the last day of such calendar month and statements of income and changes in financial position of the Company for the calendar month then ended.
(d) Information provided to Parent or its officers, directors, managers, employees, attorneys, accountants, consultants, financial advisors and other agents under this Section 5.3 shall be held in trust and confidence and Parent shall cause the recipients of the information not to at any time, directly or investigation by DISH indirectly, furnish or EchoStar or divulge any of their respective Representatives shall affect or be deemed the information to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreementa third party.
Appears in 1 contract
Access. Following the Closing, the Surviving Corporation will provide the Stockholders' Representative with reasonable access on advance notice and on a reasonable basis during regular business hours to the personnel, officers, agents, employees, assets, properties, titles, contracts (a) Upon including, without limitation, Account Owner contracts), books, records, files and documents of or pertaining to the Business, but only to the extent such are reasonably necessary in order for the Stockholders' Representative to perform its obligations and maintain its rights under this Agreement. From and after the Closing, all of the files, lists and records of the Surviving Corporation which are reasonably required by the Stockholders for the preparation of tax returns, audits and the like, the determination of the final Purchase Price or the resolution of any dispute between the parties hereto or with any third party, shall, on reasonable notice, each of DISH be made available by the Parent and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford Surviving Corporation to the other party and the other party’s Representatives reasonable access, Stockholders' Representative during normal business hours upon prior notice throughout hours, for examination and duplication at the Surviving Corporation's offices, for a period of four (4) years from and after the Closing Date. From and after the expiration of the period prior provided in the preceding sentence, the Surviving Corporation shall have the right to the Effective Timedestroy any of such files, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH lists or EchoStar, as the case may be, may reasonably requestrecords; provided, however, that each party shall not be required if the Surviving Corporation wishes to permit destroy any inspection or other access, or to disclose any information, that in the reasonable judgment of such party would: files, lists or records at any time after the expiration of four years after the Closing Date, it shall first comply with the following provisions of this subsection. At least thirty (i30) violate days prior to destroying any obligation of such party with respect to confidentiality or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilegesaid files, lists and records, 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 Surviving Corporation shall give notice of clauses (i), (ii) its intention to do so to Sonnenschein Nath & Rosenthal and (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject counsel to the Confidentiality Agreement so long as it satisfies Company (at the definition of “Evaluation Material” contained therein.
(b) To ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇th i▇ ▇▇▇▇▇▇n 11.1(a)). If such counsel shall notify the extent Surviving Corporation that the Stockholders' Representative wishes to retain any of the information files, lists or material furnished pursuant records which the Surviving Corporation intends to this Agreement may include material subject to the attorney-client privilege, work product doctrine or any other applicable privilegedestroy, the parties understand and agree that they have Surviving Corporation shall (at the expense of the Stockholders) deliver such files, lists or records to a commonality of interest with respect to location designated by 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 counsel 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 doctrinesaid notification.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable prior notice, each of DISH the Company shall afford Parent and EchoStar shall, and shall cause each of their respective Subsidiaries to, afford to the other party and the other party’s its Representatives reasonable access, during normal business hours upon prior notice throughout the period prior to the First Effective Time, to their respective the Company’s and its Subsidiaries personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar the Company shall furnish promptly to the other party Parent all reasonably available information concerning its business as DISH or EchoStar, as the case may be, Parent may reasonably requestrequest in each case for the purposes of integration planning and the consummation of the transactions contemplated by this Agreement; provided, however, that each party 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 such party would: the Company would (i) unreasonably interfere with the business or operations of the Company and its Subsidiaries, (ii) violate any obligation of such party the Company with respect to confidentiality or privacy; (iiiii) jeopardize protections afforded such party the Company under the attorney-client attorneyclient privilege, the attorney work product doctrine or any other applicable privilegesimilar legal privilege or protection; or (iiiiv) violate any Legal Requirement; or (v) result in the disclosure of any trade secrets of any third parties, including competitively sensitive information, information concerning the valuation of the Company or any Covid-19 Measureof its Subsidiaries or Personal Data that would expose the Company to the risk of liability; provided that in each case of clauses (i), (ii) and (iii) such party the Company shall inform the other party Parent of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect that would allow Parent (or its applicable Representative) access to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party or provided to Parent and its Representatives pursuant to this Section 4.8(a) Agreement shall be subject to treated as “Confidential Information” of the Confidentiality Agreement so long as it satisfies Company for purposes of the definition of “Evaluation Material” contained thereinNon-Disclosure Agreement.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 Agreement, and under the joint defense doctrine.
(c) No exchange of information or investigation by DISH Parent or EchoStar or any of their respective its Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar the Company set forth in this Agreement. No exchange of information or DISHinvestigation by the Company or its Representatives shall affect or be deemed to affect, respectively, modify or waive the representations and warranties of Parent set forth in this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Lemonade, Inc.)
Access. (a) Upon Synthon will permit JDS and its representatives, for as long as Synthon is required to maintain the applicable records pursuant to any legal or regulatory requirement in the Territory, to review from time to time during normal business hours, on reasonable notice, each for reasonable business purposes and in such manner as does not unreasonably interfere with the conduct of DISH Synthon’s business, all books, records and EchoStar shalldocuments of Synthon or any Affiliate pertaining to (i) the manufacture, formulae, manufacturing and control procedures, stability data and cost of the Product in the Territory, (ii) all regulatory status and claims information relating to the Product in the Territory, and shall cause each of their respective Subsidiaries to(iii) all clinical data, afford stability data, bioavailability data and reports pertaining to the other party and Product in the other party’s Representatives reasonable accessTerritory, during normal business hours upon prior notice throughout the period prior to the Effective Timeextent any of the foregoing has not previously been furnished to JDS. In addition, upon JDS’s request, Synthon agrees to their respective personnelmake available to JDS, properties, Contracts, filings with Governmental Entities and books and records and, from time to time during such period, each at the facilities of DISH and EchoStar shall furnish promptly to the other party all available information concerning Synthon, personnel of Synthon or its business as DISH or EchoStar, 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 Affiliates who then have positions of such party would: (i) violate any obligation of such party responsibility 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information obtained by each party and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, above set forth in this AgreementSection (and, to the extent then employed by Synthon or any Affiliate, additional personnel to the extent their familiarity with such matters may reasonably be required). To the extent any of such assistance is best provided by personnel who are no longer employed by Synthon, Synthon shall, upon JDS’s request, provide JDS with information Synthon may possess and may lawfully disclose as to the whereabouts of such personnel for purposes of consultation with JDS or its designated representatives. If Synthon is in possession of information as to the whereabouts of such former personnel and is unable to disclose such information to JDS, Synthon will so notify JDS and will transmit any information including JDS’s contact information to such personnel at JDS’s sole cost and expense.
Appears in 1 contract
Sources: Asset Purchase Agreement (Noven Pharmaceuticals Inc)
Access. (a) Upon From and after the Execution Date until Closing, Sellers shall give Purchaser (and any of its officers, employees, agents, accountants, attorneys, investment bankers, landmen, consultants or other designated representatives (collectively, “Purchaser’s Representatives”)) reasonable noticeaccess to the Company Properties (including the Company Records), each solely for the purpose of DISH Purchaser’s due diligence investigation of the Company Properties, but only to the extent that Company Parties may do so without violating any confidentiality or other obligations to any third Person and EchoStar shallonly to the extent that Company Parties have the authority to grant such access without breaching any obligation or restriction binding on the Company Parties (or any of their Affiliates). Such access by Purchaser shall be limited to the Company Parties’ normal business hours, and Purchaser’s investigation shall cause each be conducted in a manner that minimizes interference with the operation of their respective Subsidiaries to, afford the Company Properties and at the sole cost and expense of Purchaser.
(b) Purchaser acknowledges that the permission of the operator (if other than the Company Parties) or another third Person may be required before Purchaser will be able to inspect portions of the other party Company Properties and the other party’s Representatives reasonable access, during normal business hours upon prior notice throughout the period that such permission must be obtained prior to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and, during such period, each of DISH and EchoStar shall furnish promptly to the other party all available information concerning its business as DISH or EchoStar, 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such informationportions. Each party Sellers shall use commercially reasonable security measures efforts to access the systems and information of the other partyobtain such permission for Purchaser upon Purchaser’s request. All confidential information obtained by each party and its Representatives inspections pursuant to this Section 4.8(a6.1 shall be conducted at Purchaser’s sole cost, risk and expense (except to the extent caused by the gross negligence or willful misconduct of any of Sellers or the Company Parties or their respective employees, agents and representatives), and any conclusions made from any such investigation done by Purchaser or any of Purchaser’s Representatives shall result from Purchaser’s own independent review and judgment. Purchaser agrees to comply with (and to cause Purchaser’s Representatives to comply with) the rules, regulations and instructions issued by the Company Parties or any operator of the Company Properties regarding the actions of Purchaser (and Purchaser’s Representatives) in conducting any inspection pursuant to this Section 6.1.
(c) All information obtained by Purchaser and its representatives under this Section 6.1 and Section 6.2 below shall be subject to the terms of that certain Confidentiality Agreement so long between ▇▇▇▇▇ Energy and Ultimate Parent, dated as it satisfies of October 23, 2015 (the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 toConfidentiality Agreement”), 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 the joint defense doctrineprivacy Laws regarding personal information.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (EnCap Energy Capital Fund X, L.P.)
Access. (a) Upon Prior to the Closing and upon reasonable noticenotice from KIAC, each of DISH and EchoStar shall, and Sellers shall cause each of their respective Subsidiaries to, afford to the officers, attorneys, accountants or other party and the other party’s Representatives authorized representatives of KIAC reasonable access, access during normal business hours upon prior notice throughout the period prior to the Effective Timeemployees of each Seller, to their respective personnelthe Purchased Assets, propertiesthe Consigned Inventory, Contracts, filings with Governmental Entities the Miramar Facility and the other facilities of any Seller and the books and records and, during such period, each of DISH and EchoStar shall furnish promptly any Seller relating to the Purchased Assets, the Consigned Inventory then owned and in the possession or custody of, and/or operated by, any Seller and the Miramar Facility so as to afford KIAC full opportunity to make such review, examination and investigation of the Purchased Assets, Consigned Inventory and the Miramar Facility as KIAC determines to be reasonably necessary in connection with the consummation of the transactions contemplated hereby. KIAC shall be permitted to make extracts from or to make copies of such books and records as may be reasonably necessary in connection therewith. Prior to the Closing, Seller shall promptly furnish KIAC with access to such maintenance records, operating data and other party all available information concerning its business then owned and in the possession or custody of, and/or operated by, any Seller as DISH or EchoStar, as the case may be, KIAC may reasonably request. Each Seller shall promptly deliver to KIAC copies of all pleadings, motions, notices, statements, schedules, applications, reports and other papers filed by such Seller in its Chapter 11 Case; provided, however, that KIAC and/or its counsel shall enter an appearance in each party Chapter 11 Case and no Seller shall not be required to permit deliver to KIAC any inspection document or other accessmaterial received by KIAC or its counsel as a result of any such entry. Each Seller shall promptly provide to KIAC all documents and materials relating to any proposed sale, of the Purchased Assets, Consigned Inventory or to disclose Assumed Contracts or any informationportion thereof, that in the reasonable judgment of such party would: (i) violate any obligation of such party including, without limitation, with respect to confidentiality competing bids, and otherwise cooperate with KIAC, to the extent reasonably necessary in connection with KIAC's preparation for or privacy; (ii) jeopardize protections afforded such party under the attorney-client privilegeparticipation in any part of any Chapter 11 Case in which KIAC's participation is necessary, the attorney work product doctrine required or reasonably appropriate. Each Seller shall promptly deliver to KIAC all pleadings, motions, notices, statements, schedules, applications, reports and other papers filed in any other applicable privilege; judicial or (iii) violate any Legal Requirementadministrative proceeding as KIAC may reasonably request. In addition, including any Covid-19 Measure; provided that in each case of clauses (i), (ii) and (iii) such party Seller shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements consult with KIAC with respect to such informationany written or oral communication concerning, in whole or in part, the transactions contemplated by this Agreement. Each party Without limiting the generality of this Section 9.1 hereof, if requested by KIAC, each Seller shall use commercially reasonable security measures provide access to access the systems Purchased Assets, the Consigned Inventory and information of the other party. All confidential information obtained by each party Miramar Facility to KIAC and its Representatives pursuant to this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition representatives and agents for purposes of “Evaluation Material” contained thereinconducting nonintrusive environmental assessments, including Phase I analyses.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives shall affect or be deemed to affect, modify or waive the representations and warranties of EchoStar or DISH, respectively, set forth in this Agreement.
Appears in 1 contract
Access. (a) Upon reasonable noticeAt 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 Effective Time, each of DISH and EchoStar the Company shall, and shall cause each of their respective its Subsidiaries to, afford to the other party Parent and the other party’s its Representatives reasonable access, access during normal business hours hours, upon reasonable prior notice throughout the period prior notice, to the Effective Time, to their respective personnel, properties, Contracts, filings with Governmental Entities and books and records and personnel of the Company and its Subsidiaries and, during such period, the Company shall, and shall cause each of DISH and EchoStar shall its Subsidiaries to, furnish promptly to Parent and its Representatives (a) a full and accurate copy of each report, schedule and other document filed or submitted by it pursuant to the requirements of domestic or foreign securities Laws (and the Company shall deliver to Parent a copy of each report, schedule and other party document proposed to be filed or submitted by the Company pursuant to the requirements of domestic or foreign securities Laws not less than two (2) Business Days prior to such filing) and a copy of any communication (including “comment letters”) received by the Company from the SEC concerning compliance with the Exchange Act or from FINRA concerning the Company’s compliance with the eligibility requirements for quotation on the OTC Bulletin Board, (b) internal financial statements, and (c) all available other information concerning its business business, Taxes, properties or personnel as DISH Parent or EchoStar, as the case may be, its Representatives may reasonably request; provided, however, that each party shall not be required to permit any inspection no information 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 (iii) such party shall inform the other party of the nature of the information being withheld, and shall use its reasonable best efforts to make alternative arrangements with respect to such information. Each party shall use commercially reasonable security measures to access the systems and information of the other party. All confidential information knowledge obtained by each party and its Representatives Parent in any investigation conducted pursuant to the access contemplated by this Section 4.8(a) shall be subject to the Confidentiality Agreement so long as it satisfies the definition of “Evaluation Material” contained therein.
(b) To the extent that any of the information or material furnished pursuant to this Agreement may include material subject to the 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 the joint defense doctrine.
(c) No exchange of information or investigation by DISH or EchoStar or any of their respective Representatives 5.4 shall affect or be deemed to affect, modify any representation or waive warranty of the representations and warranties of EchoStar or DISH, respectively, Company set forth in this AgreementAgreement or otherwise impair the rights and remedies available to Parent and Merger Sub hereunder. Parent and its Representatives shall have the right to consult on a regular basis with each of the members of the Company’s and its Subsidiaries’ senior management team, in each case, so that Parent and Merger Sub may obtain all information concerning the business, assets or affairs of the Company and its Subsidiaries as they may reasonably request. From the date hereof until the earlier of the termination of this Agreement and the Effective Date, the Company shall confer from time to time as requested by Parent with Parent or its Representatives to discuss any material changes or developments in the operational matters of the Company and its Subsidiaries and the general status of the ongoing operations of the Company and its Subsidiaries.
Appears in 1 contract