Access to Information; Confidentiality. Subject to applicable law, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 4 contracts
Samples: Document Agreement and Plan of Merger (Information Resources Inc), Agreement and Plan of Merger (Information Resources Inc), Document Agreement and Plan of Merger (Information Resources Inc)
Access to Information; Confidentiality. Subject The Company agrees that upon reasonable notice it shall (and shall cause its Subsidiaries to) afford Parent and its Representatives reasonable access, during normal business hours until the earlier of the Effective Time and the date this Agreement is terminated pursuant to applicable lawArticle VII, to such information regarding the Company and its Subsidiaries as may reasonably be requested by Parent and shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors cause its executive officers and other representatives (the "relevant personnel to be reasonably available to Parent Representatives") to respond to reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly questions regarding such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably requestthe Business generally; provided, however, such investigation shall not unreasonably disrupt that the Company may restrict the foregoing access and assistance to the extent that, in the reasonable judgment of the Company's operations. All nonpublic , (a) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (b) the information is subject to confidentiality obligations to a third party that would be breached by such disclosure, or (c) disclosure of any such information or document could result in the loss of attorney-client privilege; provided further, however, that with respect to this clause (c), if requested by Parent, the Company will enter into joint defense agreements or other arrangements with Parent to allow such disclosure, but only if the Company determines, with the advice of its outside legal counsel, but in its sole discretion, that so doing will fully preserve the attorney-client privilege; provided further, however, that any information provided to, or obtained by, Parent, to Parent and/or Merger Sub or any such financing source in connection with the transactions contemplated hereby pursuant to this Section 5.03 shall be "Confidential Information" for purposes of subject to the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until to apply, except as otherwise agreed by the Effective Time; provided that ParentCompany, Merger Sub notwithstanding termination of this Agreement. In the event of any conflict between the terms of this Section 5.03 (other than clause (c) above) and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractConfidentiality Agreement, as applicablethe terms of the Confidentiality Agreement shall control. No investigation review of information pursuant to this Section 5.04(a) shall Agreement will affect any of the representations or be deemed to modify any representation or warranty warranties of the parties hereto contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 4 contracts
Samples: Agreement and Plan of Merger (BTP Acquisition Company, LLC), Agreement and Plan of Merger (Image Entertainment Inc), Agreement and Plan of Merger (BTP Acquisition Company, LLC)
Access to Information; Confidentiality. (a) Subject to applicable lawLaws relating to the exchange of information, from the date hereof until the earlier of the Effective Time or the date on which this Agreement is terminated pursuant to Section 7.1, the Company shall afford to Parent and its Representatives reasonable access (at Parent’s sole cost and expense) during normal business hours and upon reasonable advance notice to the Company’s properties (but excluding for the conduct of Phase II environmental assessments or testing), employees, books, Contracts and records and the Company shall furnish as promptly as reasonably practicable to Parent such information concerning its business, properties, contracts, assets and liabilities of the Company as Parent may reasonably request (other than any publicly available document filed by the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior pursuant to the Effective Time requirements of federal or state securities Laws); provided that Parent and its Representatives shall conduct any such activities in such a manner as not to their respective properties, books, contracts, commitments unreasonably interfere with the business or operations of the Company and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent Subsidiaries or Merger Sub shall reasonably requestCompany Joint Ventures; provided, howeverfurther, such investigation (i) that the Company shall not unreasonably disrupt be obligated to provide such access or information if the Company's operationsCompany determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third party, jeopardize the protection of the attorney-client privilege, or expose such party to risk of liability for disclosure of sensitive or personal information and (ii) the conduct of such activities shall be subject to the rights and obligations of the Company referred to in the final proviso of the final sentence of Section 5.4(c) hereof. All nonpublic Until the Effective Time, the information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with will be subject to the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement confidentiality agreement, dated February 19as of May 31, 2003 2017 between Parent and the Company (as it may be amended from time to time, the "“Confidentiality Agreement"”), and, without limiting the terms generality of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Parent and Company shall not be required to provide any information which it reasonably believes it may not provide to not, and Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the and Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary their respective Representatives not to, provide use such information for any purpose unrelated to the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms consummation of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeTransactions.
Appears in 4 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger, Agreement and Plan of Merger
Access to Information; Confidentiality. Subject Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to applicable lawParent and its Representatives reasonable access in a manner that does not unreasonably interfere with the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice throughout the period commencing on the date of this Agreement until the earlier of the First Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, to the properties, offices and other facilities and books and records, and personnel of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly such to Parent and its Representatives all information (to the extent not publicly available) concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as Parent or Merger Sub shall may reasonably requestbe requested; provided, however, such investigation that nothing herein shall not unreasonably disrupt require the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub Company or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may its Subsidiaries to disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason or Merger Subs if such disclosure would reasonably be expected to violate applicable Law or the provisions of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or any Contract to which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contract, agreement a party or understanding with third parties; provided that, with respect to violate any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, attorney-client or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4)legal privilege; provided, that the Company and its Subsidiaries shall use reasonable best efforts to provide as much information as possible without violating such disclosure may not be made until applicable Law or privilege. The Confidentiality Agreement shall apply with respect to information furnished by the earlier of (x) Company, its Subsidiaries and the date of public announcement of discussions relating Company’s officers, employees and other Representatives hereunder and, if this Agreement is terminated prior to the transactions contemplated by this AgreementFirst Effective Time, (y) the date of Confidentiality Agreement shall remain in full force and effect in accordance with its terms prior to giving effect to the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Reorganization (Matterport, Inc./De), Agreement and Plan of Merger and Reorganization (Costar Group, Inc.), Agreement and Plan of Merger and Reorganization (Matterport, Inc./De)
Access to Information; Confidentiality. Subject (a) The Company shall, and shall cause each Company Subsidiary to, afford to applicable law, the Company Parent and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours upon reasonable notice throughout during the period prior to before the Effective Time to all their respective properties, facilities, books, records, contracts, commitments commitments, correspondence (in each case, whether in physical or electronic form), officers, employees, agents and records other assets and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish promptly such to Parent all information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, that such investigation shall access does not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes normal operations of the Confidentiality Agreement dated February 19, 2003 between Parent Company and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory ApprovalsSubsidiaries. Notwithstanding the foregoing, the Company This Section 6.02(a) shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which require the Company or any Company Subsidiary is required to keep confidential by reason permit any access, or to disclose any information, that in the reasonable judgment of contract, agreement such party could reasonably be expected to result in (i) the disclosure of any trade secrets of third parties or understanding with third parties; provided that, a violation of any of its obligations with respect to any confidentiality, (ii) the loss of attorney-client privilege with respect to such information, information (provided that such privilege cannot in the Company’s good-faith judgment be reasonably sufficiently protected using a joint defense or other similar agreement) or (iii) a Governmental Entity alleging that providing such information violates antitrust Law; provided that the Company shall, or shall cause use good faith efforts to communicate to Parent the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that requested information in a manner) way that is consistent with the would not waive any applicable law, rule or regulation, the maintenance of that attorney-client privilege or the terms of the relevant contractcontravene any applicable Law or confidentiality agreement, as applicable. No investigation All information exchanged pursuant to this Section 5.04(a6.02(a) or pursuant to Section 6.09 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations nondisclosure agreement, dated as of November 1, 2019, by and between the parties heretoCompany and WESCO Distribution, Inc. (the “Confidentiality Agreement”) and to the Clean Team Confidentiality Agreement, dated as of November 21, 2019, by and between the Company and WESCO Distribution, Inc. (the “Clean Team Agreement”). Notwithstanding anything herein to the contrarycontrary in this Section 6.02(a), neither Parent nor any of its Representatives shall conduct, without the prior written consent of the Company, which consent may be withheld in the Company’s sole discretion, any party to this Agreement (and each employee, representative, environmental investigation at any Company Property involving any sampling or other agent intrusive investigation of air, surface water, groundwater, soil, structures or anything else at or in connection with any Company Property. During any visit to the business or property sites of the Company or any of the Company Subsidiaries, Parent shall, and shall cause its Representatives accessing such parties) may disclose to any properties to, comply with all applicable Laws and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder Company’s and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" Company Subsidiaries’ safety and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposesecurity procedures.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Wesco International Inc), Agreement and Plan of Merger (Anixter International Inc), Agreement and Plan of Merger (Wesco International Inc)
Access to Information; Confidentiality. Subject to applicable lawLaw relating to the exchange of information, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time or the termination of this Agreement to their respective all of its and its Subsidiaries’ properties, books, contractsContracts, commitments personnel and records and, during such period, and the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by it pursuant to the requirements of federal or state securities Laws to the extent copies of such reports, schedules and other documents are not accessible via the SEC’s XXXXX database, (ii) other information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall any of its Representatives may reasonably request; and (iii) instruct its employees, counsel, financial advisors, auditors and other authorized Representatives to cooperate with Parent in its investigation of the Company and its Subsidiaries; provided, however, such investigation shall not unreasonably disrupt that the Company's operationsCompany may restrict the foregoing access if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third-party or jeopardize the protection of an attorney-client privilege or the attorney work product doctrine. All nonpublic The information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with will be subject to the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that . Parent, Merger Sub and their representatives may not conduct any environmental sampling or require that the Company may disclose such information as may do so (which in all cases shall be necessary in connection with seeking at Parent’s sole expense), without the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoingCompany’s consent, the Company which consent shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableunreasonably withheld. No investigation pursuant to this Section 5.04(a6.7 or information provided, made available or delivered to Parent pursuant to this Agreement (other than, subject to Section 9.8, information contained in the Company Disclosure Schedule) shall will affect any of the representations or be deemed to modify any representation or warranty warranties of the Company contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Natrol Inc), Agreement and Plan of Merger (Plethico Pharmaceuticals Ltd.), Agreement and Plan of Merger (Nutra Acquisition CO Inc.)
Access to Information; Confidentiality. Subject to compliance with applicable law, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective to Parent's officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") , reasonable access (including for the purpose of coordinating integration activities and transition planning with the employees of the Company and its Subsidiaries) during normal business hours upon reasonable notice throughout during the period prior to the Effective Time or the termination of this Agreement to their respective all its and its Subsidiaries' properties, books, contracts, commitments commitments, personnel and records and, during such period, the Company shall furnish promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its businessesand its Subsidiaries' business, properties and personnel as Parent or Merger Sub shall may reasonably requestrequest and receive consistent with applicable law and agreements. Without limiting the generality of the foregoing, the Company will afford to Parent and its Representatives access to, and facilitate and participate in discussions with, all drivers, team owners, sanctioning bodies, automobile manufacturers and other licensors for purposes of discussing such parties' license agreements and other Contracts with the Company and its Subsidiaries; provided, however, that all such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby discussions shall be "Confidential Information" arranged by the Company and shall be undertaken jointly by the Parent and the Company unless the Parent and the Company otherwise agree. Except for purposes disclosures expressly permitted by the terms of the Confidentiality Agreement dated February 19as of June 17, 2003 2005 between Parent and the Company (as it may be amended from time to time, the "Confidentiality Agreement"), the terms of which Parent shall continue in force until the Effective Time; provided that Parenthold, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause its officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the relevant Subsidiary toCompany, provide the maximum amount of that information (directly or shall endeavor to otherwise convey that information indirectly, in a manner) that is consistent confidence in accordance with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableConfidentiality Agreement. No investigation pursuant to this Section 5.04(a) shall 5.02 or information provided or received by any party hereto pursuant to this Agreement will affect any of the representations or be deemed to modify any representation or warranty warranties of the parties hereto contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (International Speedway Corp), Agreement and Plan of Merger (Action Performance Companies Inc), Agreement and Plan of Merger (International Speedway Corp)
Access to Information; Confidentiality. Subject to the confidentiality agreement between Parent and the Company, dated July 30, 2010 (the “Confidentiality Agreement”) and applicable lawLaw, the Company and its Subsidiaries shall afford to ParentParent and its officers, Merger Sub and their financing sources and their respective employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") , reasonable access during normal business hours upon at all reasonable times on reasonable notice throughout during the period prior to between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.1 to all their respective properties, books, contracts, commitments commitments, personnel and records records, including for the purpose of conducting Phase I environmental site assessments (provided, that such access shall not unreasonably interfere with the business or operations of the Company) and, during such period, the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities Laws and (ii) all other information concerning its businessesbusiness, properties properties, litigation matters, personnel and personnel environmental compliance and property condition as Parent or Merger Sub shall may reasonably request; provided, however, such investigation that nothing in this Section 6.2 shall not unreasonably disrupt require the Company's operations. All nonpublic information provided toCompany to provide any access, or obtained byto disclose any information, if permitting such access or disclosing such information would (A) violate applicable Law, (B) violate any of its obligations with respect to confidentiality (provided, that the Company shall, upon the request of Parent, Merger Sub use its commercially reasonable efforts to obtain the required consent of any third party to such access or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19disclosure, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided it being understood that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide make any information which it reasonably believes it may payments in connection with the fulfillment of its obligations under this clause (B)), or (C) result in the loss of attorney-client privilege (provided, that the Company shall use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not provide to Parent by reason result in a loss of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege, or which it being understood that the Company or any Subsidiary is shall not be required to keep confidential by reason make any payments in connection with the fulfillment of contract, agreement or understanding with third parties; provided that, with respect to any such informationits obligations under this clause (C)). In addition, the Company shalland its officers and employees shall reasonably cooperate with Parent, or shall cause the relevant Subsidiary toat Parent’s sole cost and expense, provide the maximum amount of that information (or shall endeavor in Parent’s efforts to otherwise convey that information in a manner) that is consistent comply with the applicable lawrules and regulations affecting public companies, rule or regulation, including the maintenance of that privilege or the terms of the relevant contract, as applicableXxxxxxxx-Xxxxx Act. No investigation review pursuant to this Section 5.04(a) 6.2 shall affect or be deemed to modify any representation or warranty in this Agreement contained herein, the covenants or agreements of any party the parties hereto or any condition the conditions to the obligations of the parties heretohereto under this Agreement. All information provided pursuant to this Section 6.2 shall be subject to the terms of the Confidentiality Agreement. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (contrary in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the Company hereby consents to Parent contacting any time after the date hereof those Persons set forth on Section 6.2 of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein Company Disclosure Letter in connection with supplies to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from Company following the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeClosing.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Endo Pharmaceuticals Holdings Inc), Agreement and Plan of Merger (Perceptive Advisors LLC), Agreement and Plan of Merger (Penwest Pharmaceuticals Co)
Access to Information; Confidentiality. Subject Except as required pursuant to any confidentiality agreement or similar agreement or arrangement to which the Company is a party, and except as would reasonably be expected to result in the loss or waiver of any attorney-client, work product or other applicable lawprivilege (provided, that to the extent the Company or any Company Representative shall withhold information or access due to the risk of loss or waiver of such privilege, the Company or such Company Representative shall notify Parent of such withholding and shall use commercially reasonable efforts to communicate such information in a manner that does not risk such loss or waiver), from the date of this Agreement to the Effective Time, the Company will, and will cause each of its directors, officers and employees, and will instruct each of its accountants, consultants, legal counsel, advisors, agents and other representatives, (collectively, “Representatives” and, with respect to the Company, the “Company Representatives”) to: (i) provide to the Parent Group and their respective Representatives (the “Parent Representatives”) reasonable access at reasonable times during normal operating hours upon prior written notice to the officers, employees, agents, properties, offices and other facilities of such party and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments books and records and, during such period, shall thereof and (ii) furnish promptly such information concerning its businessesthe business, properties properties, Contracts, assets, liabilities, personnel and personnel other aspects of the Company as Parent or Merger Sub shall the Parent Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No no investigation pursuant to this Section 5.04(a) 5.2 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto made by the Company herein or any condition of the conditions to the obligations of the parties heretohereto under this Agreement; provided, further, that any investigation pursuant to this Section 5.2 shall be conducted in such manner as not to interfere unreasonably with the conduct of the Company. Notwithstanding anything herein The information referred to in the previous sentence shall be subject to the contraryConfidentiality Agreement, any party to this Agreement dated as of April 8, 2022, by and between the Company and Parent (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until nothing in the earlier of (x) the date of public announcement of discussions relating Confidentiality Agreement shall restrict Parent’s or Merger Sub’s ability to the transactions contemplated by this Agreement, (y) the date take any of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions actions expressly contemplated by this Agreement. The intent Company and Parent hereby agree, in accordance with Section 13 of the Confidentiality Agreement, that the Confidentiality Agreement shall be deemed to have been, and hereby is, amended by the provisions of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeSection 5.2.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Jetblue Airways Corp), Agreement and Plan of Merger (Jetblue Airways Corp), Agreement and Plan of Merger (Spirit Airlines, Inc.)
Access to Information; Confidentiality. Subject to applicable law(a) During the period from the date of this Agreement through the earlier of the Closing and the termination of this Agreement, the Company each of SAM and STFC shall, and shall cause their respective Subsidiaries and Representatives to, upon reasonable notice, afford LMHC and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representative reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to officers, employees, advisors, properties, and books and records of SAM, STFC or their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractSubsidiaries, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employeeof SAM and STFC shall, representativeand shall cause their respective Subsidiaries to, furnish reasonably promptly to LMHC such other information concerning the business and properties of SAM, STFC or other agent of such parties) their respective Subsidiaries, as applicable, as LMHC may disclose reasonably request from time to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (time in each case, within case for the meaning purposes of Treasury Regulation section 1.6011-4) of integration planning and the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement consummation of the transactions contemplated by this Agreement, including furnishing, not later than fifteen (15) days following the end of each calendar month, the gross and net premiums written by the SAM Insurance Companies and the STFC Insurance Companies in such month. None of SAM, STFC or their respective Subsidiaries shall be required to provide any such access or information to the extent that doing so (i) would cause a waiver of an attorney-client privilege or loss of attorney work product protection, (ii) would constitute a violation of any applicable Law or the provisions of any Contract to which SAM, STFC or any of their respective Subsidiaries is a party or (ziii) would interfere unreasonably with the date business or operations of execution of SAM, STFC or their respective Subsidiaries. Without limiting the foregoing, in the event that SAM or STFC does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to LMHC that it is withholding such access or information and shall use its commercially reasonable efforts to communicate, to the extent feasible, the applicable information in a way that would not cause such a waiver or loss, violation or interference, as the case may be. No investigation shall affect SAM’s or STFC’s representations, warranties, covenants or agreements contained herein or limit or otherwise affect the remedies available to any party pursuant to this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger and Combination (State Auto Financial CORP), Agreement and Plan of Merger and Combination, Agreement and Plan of Merger and Combination
Access to Information; Confidentiality. (a) Subject to applicable lawLaw, the Company shall, and its shall cause each of the Company Subsidiaries shall to, afford to Parent and to Parent’s Representatives reasonable access, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout advance notice, during the period prior to from the date of this Agreement until the earlier of the Effective Time or termination of this Agreement in accordance with its terms, to all their respective properties, books, contracts, commitments commitments, personnel and records and, during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish promptly such to Parent all information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably requestrequest in connection with this Agreement and the transactions contemplated hereby, including for purposes of any business planning (including for post-Closing periods) and integration; provided, however, such investigation that the Company (i) shall not be required to afford such access if it would unreasonably disrupt the operations of the Company's operations, (ii) may withhold any document or information the disclosure of which would cause a violation of any agreement to which the Company or such Company Subsidiary is a party (provided that the Company shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure) and (iii) may withhold any document or information the disclosure of which would be reasonably likely to risk a loss of legal privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that would not be reasonably likely to risk a loss of legal privilege). If any material is withheld by the Company pursuant to the immediately preceding sentence, the Company shall, to the extent possible without violating an agreement or risking a loss of legal privilege, inform Parent as to the general nature of what is being withheld. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby exchanged pursuant to this Section 6.02(a) shall be "Confidential Information" for purposes of subject to the Confidentiality Agreement confidentiality agreement dated February 19August 29, 2003 2013 between Parent and the Company (the "“Confidentiality Agreement"”), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Martin Marietta Materials Inc), Agreement and Plan of Merger (Texas Industries Inc), Agreement and Plan of Merger (Martin Marietta Materials Inc)
Access to Information; Confidentiality. Subject to applicable law, (a) Seller shall (and shall cause the Company and its Subsidiaries shall Brand Companies to) afford to ParentPurchaser, Merger Sub and their its financing sources and each of their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives commercially reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time Closing Date to their respective properties, books, contracts, commitments the books and records and, during such period, shall furnish promptly such information concerning its businessesrecords, properties and personnel of the Brand Companies and shall furnish promptly to Purchaser all financial and operating data and other information concerning the Brand Companies’ businesses, properties, and personnel as Parent or Merger Sub shall reasonably Purchaser may request; provided, howeverthat, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent Seller and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company Brand Companies shall not be required to provide take any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which action that would unreasonably disrupt the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of Brand Companies’ respective operations. Each Party agrees that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(aConfidentiality Agreement (including the provisions regarding no unauthorized contact and non-solicitation) shall affect or be deemed to modify any representation or warranty survive and remain in full force and effect following the execution and delivery of this Agreement and Purchaser shall continue to comply with the terms thereof through the Closing. Notwithstanding the forgoing, in no event shall the foregoing require Seller or any Brand Company to permit (a) any inspection or to disclose any information that, in its reasonable judgment, might risk or result in (i) the waiver of any party hereto attorney-client or other privilege, (ii) the disclosure of any Intellectual Property of any third party, (iii) the violation of any of its or its Affiliates’ or Representatives obligations with respect to confidentiality, any other rights of third parties or any condition Applicable Law, or (iv) the disclosure of any personnel files of any Brand Employee prior to the obligations Closing Date without Purchaser having first obtained a release by such Brand Employee (provided that Purchaser shall indemnify and hold Seller and its Affiliates and Representatives harmless from any Liabilities arising out of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date transfer of the public announcement of the transactions contemplated by this Agreementsuch personnel files), or (zb) the date of execution of this Agreement. Moreoverany contact with any customers, notwithstanding anything herein to the contraryvendors, there shall be no limitation on suppliers or any party's ability to consult other Person with whom any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeBrand Company has entered into any Contract.
Appears in 3 contracts
Samples: Membership Interest Purchase Agreement, Membership Interest Purchase Agreement (Gaiam, Inc), Membership Interest Purchase Agreement (Sequential Brands Group, Inc.)
Access to Information; Confidentiality. Subject to (a) To the extent permitted by applicable lawLaw, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective to Parent’s officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") , reasonable access (including for the purpose of coordinating integration activities and transition planning with the employees of the Company and its Subsidiaries) during normal business hours and upon reasonable prior notice throughout to the Company during the period prior to the Effective Time or the termination of this Agreement to their respective all its and its Subsidiaries’ properties, books, contractsContracts, commitments commitments, personnel and records records, but only to the extent that such access does not unreasonably interfere with the business or operations of the Company and its Subsidiaries, and, during such period, the Company shall furnish promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities Laws and (b) all other information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide (or to cause any of its Subsidiaries to) so confer, afford such access or furnish such copies or other information which it reasonably believes it may to the extent that doing so would result in the loss of attorney-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure in a manner that does not provide to Parent by reason result in a loss of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege, or which the Company or any Subsidiary is required to keep confidential ). Except for disclosures expressly permitted by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractConfidentiality Agreement dated as of December 7, 2005 between Parent and the Company (as it may be amended from time to time, the “Confidentiality Agreement”), Parent shall hold, and shall cause its officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the Company, directly or indirectly, in confidence in accordance with the Confidentiality Agreement. The Confidentiality Agreement shall survive any termination of this Agreement. Notwithstanding the terms of the Confidentiality Agreement, Parent and the Company agree that until the earlier of the consummation of this Agreement or the six month anniversary of the date of the termination of this Agreement, as applicable, each party and its respective Subsidiaries shall not, without the other party’s prior written consent, directly or indirectly solicit for employment (other than through advertising in newspapers or periodicals of general circulation or recruiters’ searches, in each case not specifically directed at the other party’s employees) any executive officer of the other party or any other person currently employed by the other party or any of its Subsidiaries with whom it has contact or who is identified to such party in connection with discussions between the parties in connection with entering into this Agreement. No investigation pursuant to this Section 5.04(a) shall 5.02 or information provided or received by any party hereto pursuant to this Agreement will affect any of the representations or be deemed to modify any representation or warranty warranties of the parties hereto contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Boston Scientific Corp), Agreement and Plan of Merger (Boston Scientific Corp), Agreement and Plan of Merger (Boston Scientific Corp)
Access to Information; Confidentiality. Subject (a) The Company shall, and shall cause its officers, employees, counsel, financial advisors and other representatives to, afford to applicable lawExplore Anywhere Holding Corp. and its representatives reasonable access during normal business hours during the period prior to the Effective Time to its and to the Company’s properties, books, contracts, commitments, personnel and records and, during such period, the Company shall, and shall cause its officers, employees and representatives to, furnish promptly to Explore Anywhere Holding Corp. all information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. For the purposes of determining the accuracy of the representations and warranties of Explore Anywhere Holding Corp. set forth herein and compliance by Explore Anywhere Holding Corp. of its obligations hereunder, during the period prior to the Effective Time, Explore Anywhere Holding Corp. shall provide the Company and its Subsidiaries representatives with reasonable access during normal business hours to its properties, books, contracts, commitments, personnel and records as may be necessary to enable the Company to confirm the accuracy of the representations and warranties of Explore Anywhere Holding Corp. set forth herein and compliance by Explore Anywhere Holding Corp. of its obligations hereunder, and, during such period, Explore Anywhere Holding Corp. shall, and shall afford cause its officers, employees and representatives to, furnish promptly to Parentthe Company upon its request (i) a copy of each report, Merger Sub schedule, registration statement and their financing sources other document filed by it during such period pursuant to the requirements of federal or state securities laws and their (ii) all other information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. Except as required by law, each of the Company and Explore Anywhere Holding Corp. will hold, and will cause its respective directors, officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior and affiliates to the Effective Time to their respective propertieshold, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All any nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeconfidence.
Appears in 3 contracts
Samples: Agreement (Explore Anywhere Holding Corp), Agreement (Explore Anywhere Holding Corp), Agreement (Explore Anywhere Holding Corp)
Access to Information; Confidentiality. (a) Subject to applicable lawLaw, upon reasonable notice, the Company and its Subsidiaries Partnership shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Partnership’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Partnership shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; provided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Partnership; provided, further, however, such investigation that the Partnership shall not unreasonably disrupt be obligated to provide such access or information if the Company's operationsPartnership determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third party, waive the protection of an attorney-client privilege or other legal privilege or expose the Partnership to risk of liability for disclosure of sensitive or personal information. Without limiting the foregoing, in the event that the Partnership does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent that it is withholding such access or information and shall use its reasonable best efforts to communicate, to the extent feasible, the applicable information in a way that would not violate the applicable Law, Contract or obligation or risk waiver of such privilege. All nonpublic requests for information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby made pursuant to this Section 5.08 shall be "Confidential Information" for purposes of directed to the Confidentiality Agreement dated February 19, 2003 between Parent and Person designated by the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until Partnership. Until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not information provided will be required subject to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractconfidentiality agreement dated as of November 5, 2020, by and between the GP Parent and a Parent Subsidiary (as applicable. No investigation pursuant may in the future be amended from time to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindtime, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (New Fortress Energy Inc.), Agreement and Plan of Merger (Golar LNG LTD), Agreement and Plan of Merger (Golar LNG Partners LP)
Access to Information; Confidentiality. Subject to applicable lawLaw and confidentiality agreements, from the date hereof until the Effective Time, the Company shall, and shall cause its Subsidiaries and the officers, directors, employees, auditors and agents of the Company and its Subsidiaries shall to afford to Parent, Merger Sub and their financing sources and their respective accountantsfollowing notice from Parent to the Company in accordance with this Section 7.02, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective officers, employees, agents, properties, booksoffices and other facilities, contracts, commitments commitments, books and records andof the Company and each of its Subsidiaries, during such periodand all other financial, shall furnish promptly such operating and other data and information and any other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, neither Parent nor any of its representatives shall (i) contact or have any discussions with any of the customers, employees, agents or representatives of the Company or its Subsidiaries, unless in each case Parent obtains the prior written consent of the Company, which shall not be unreasonably withheld, (ii) damage any property or any portion thereof, or (iii) perform any onsite procedure or investigation (including any onsite environmental investigation or study) unless in each case Parent obtains the prior consent of the Company, which shall not be unreasonably withheld. Parent shall schedule and coordinate all inspections with the Company and shall give the Company at least three (3) Business Days prior notice thereof, setting forth the inspection or materials that Parent or its representatives intend to conduct or review, as applicable. The Company shall be entitled to have representatives present at all times during any such inspection. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall be required to provide any access to or to disclose information which it reasonably believes it may not provide to Parent by reason where such access or disclosure would (x) jeopardize the attorney-client privilege of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such informationCompany, the Company shallBoard or any committee thereof or the Company’s Subsidiaries, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (y) contravene any Law or shall endeavor binding agreement entered into prior to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) provided, that, if requested to do so by Parent, the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein Company shall use its commercially reasonable efforts to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent obtain a waiver from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposecounterparty.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Dragon Pharmaceutical Inc), Agreement and Plan of Merger (Dragon Pharmaceutical Inc), Agreement and Plan of Merger (Dragon Pharmaceutical Inc)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other ’s representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish reasonably promptly to Parent such other information concerning its businesses, business and properties and personnel as Parent may reasonably request (provided that Parent and its representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or Merger Sub shall reasonably requestoperations of the Company); provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may not provide if (a) the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or an obligation of confidentiality owing to Parent by reason a third party so long as the Company shall have used reasonable best efforts to obtain the consent of applicable lawsuch third party to such access, rules or regulations, which constitutes information protected by jeopardize the protection of an attorney/-client privilege, or which expose the Company to risk of liability for disclosure of sensitive or personal information or (b) such information relates to or includes the evaluation, deliberations or minutes of the Company Board (or any Subsidiary is required committee thereof) related to keep confidential by reason of contract, agreement the Transactions or understanding with third parties; any materials provided that, with respect to the Company Board (or any such informationcommittee thereof) in connection therewith. Until the Effective Time, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor provided will be subject to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractConfidentiality Agreement, dated as applicableof the date of this Agreement, by and between the Company and Apollo Management VIII, L.P. (as it may be amended from time to time, the “Confidentiality Agreement”), and, without limiting the generality of the foregoing, Parent shall not, and shall cause its representatives not to, use such information for any purpose unrelated to the consummation of the Transactions. No investigation investigation, or information received, pursuant to this Section 5.04(a) shall affect or be deemed to 6.6 will modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretorepresentations and warranties of the Company herein. Notwithstanding anything herein to The Company hereby releases Apollo Management VIII, L.P. from all of its obligations under the contraryconfidentiality agreement between the Company and Apollo Management VIII, any party to this Agreement L.P., dated as of October 23, 2013 (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindas amended, the U.S. "tax treatment" or "tax structure" (in each case“Existing Confidentiality Agreement”)), within and the meaning of Treasury Regulation section 1.6011-4) of Company agrees that Apollo Management VIII, L.P. shall have no further liability under the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Existing Confidentiality Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (Hospitality Distribution Inc), Agreement and Plan of Merger (Cec Entertainment Inc)
Access to Information; Confidentiality. Subject (a) Except as required pursuant to any confidentiality agreement or similar agreement or arrangement to which the Company is a party, and except as would result in the loss or waiver of any attorney-client, work product or other applicable lawprivilege, from the date of this Agreement to the Effective Time, the Company will, and will cause each of its Subsidiaries shall afford directors, officers, employees, accountants, auditors, consultants, legal counsel, advisors (including financial advisors), agents and other representatives, (collectively, “Representatives” and, with respect to Parentthe Company, the “Company Representatives”) to: (i) provide to Parent and Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives Representatives (the "“Parent Representatives"”) reasonable access at reasonable times during normal business operating hours upon reasonable prior notice throughout the period prior to the Effective Time to their respective officers, employees, agents, properties, books, contracts, commitments offices and other facilities of such party and its Subsidiaries and to the books and records and, during such period, shall thereof and (ii) furnish promptly such financial and operating data and other information concerning the business, properties, Contracts, assets, liabilities, personnel and other aspects of such party and its businesses, properties and personnel Subsidiaries as Parent or Merger Sub shall the Parent Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No no investigation pursuant to this Section 5.04(a) 5.2 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto made by the Company herein or any condition of the conditions to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to hereto under this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4)Agreement; provided, further, that any investigation pursuant to this Section 5.2 shall be conducted in such disclosure may manner as not to interfere unreasonably with the conduct of the Company. The information referred to in the previous sentence shall be made until the earlier of (x) the date of public announcement of discussions relating subject to the transactions contemplated by this Confidentiality Agreement, dated December 11, 2015, by and between the Company and Parent (y) the date of “Confidentiality Agreement”). The Company shall notify Parent in writing in the public announcement of event that the transactions contemplated by this Agreement, Company seeks to withhold any information or (z) documents pursuant to the date of execution exception set forth in the first sentence of this Agreement. MoreoverSection 5.2(a), notwithstanding anything herein and thereafter the Company and Parent shall reasonably cooperate to the contrary, there shall cause such information to be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed provided in a manner consistent with such purposethat would not reasonably be expected to waive the applicable privilege or protection or violate the applicable restriction.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Alaska Air Group, Inc.), Agreement and Plan of Merger (Virgin America Inc.), Agreement and Plan of Merger (Alaska Air Group, Inc.)
Access to Information; Confidentiality. (a) Subject to applicable lawApplicable Law, any COVID-19 Measures and Section 6.02(b), the Company shall, and shall cause each of its Subsidiaries shall to, afford to Parent and Parent’s Representatives reasonable access, Merger Sub upon reasonable advance notice and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout hours, during the period prior to the Effective Time Time, to all their respective properties, assets, books, contracts, commitments commitments, plans, Tax records and Tax Returns, work papers, personnel, Representatives and records and, during such period, the Company shall, and shall cause its Subsidiaries to, furnish promptly to Parent (i) to the extent not publicly available, a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws or commission actions, (ii) a copy of all correspondence between such party or any of its Subsidiaries and any party to a Material Contract with regard to any action, consent, approval or waiver that is required to be taken or obtained with respect to such Material Contract in connection with the consummation of the Merger or the other transactions contemplated by this Agreement and (iii) all other information concerning its businessesbusiness, properties and personnel as may be reasonably requested by Parent, and all information necessary to enable Parent or Merger Sub shall reasonably request; providedto prepare the financial statements and related disclosures regarding the Company and its Subsidiaries that are required to be included in the Registration Statement and in Parent’s Current Report on Form 8-K following the Closing (in each case, however, such investigation shall in a manner so as to not unreasonably disrupt interfere in any material respect with the Company's operationsnormal business operations of the Company its Subsidiaries). All nonpublic information provided to, or obtained by, Parent, Merger Sub or any access pursuant to this Section 6.02(a) shall be (A) conducted in such financing source in connection a manner as not to interfere unreasonably with the transactions contemplated hereby shall be "Confidential Information" for purposes normal operations of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required of its Subsidiaries and (B) coordinated through the General Counsel of the Company or a designee thereof. Subject to keep confidential by reason the limitations and restrictions set forth in, and without expanding the obligations of contract, agreement or understanding with third parties; provided that, with respect to any such informationthe parties under Applicable Laws and this Section 6.02(a), the Company shall, or and shall cause the relevant Subsidiary its Subsidiaries to, provide reasonably cooperate with Parent and its Subsidiaries to facilitate the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms planning of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations integration of the parties hereto. Notwithstanding anything herein to and their respective businesses after the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeClosing Date.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (CMC Materials, Inc.), Agreement and Plan of Merger (CMC Materials, Inc.), Agreement and Plan of Merger (Entegris Inc)
Access to Information; Confidentiality. Subject (a) Upon reasonable prior written notice, subject to applicable lawApplicable Law, the Company shall, and shall cause the Company Subsidiaries to, afford to Parent and its Subsidiaries shall afford to ParentRepresentatives, Merger Sub and their financing sources and their respective accountantsreasonable access, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout during the period prior from the date of this Agreement to the earlier of the Effective Time or the termination of this Agreement, to their respective all of its properties, books, contracts, commitments contracts and records and provide copies thereof to Parent, and, during such period, the Company shall, and shall furnish promptly such cause the Company Subsidiaries to, reasonably make available to Parent all other information concerning its businesses, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, howeverand instruct its Representatives to reasonably cooperate with Parent in its investigation. Without limiting the foregoing, following the date of this Agreement and continuing through the Closing Date or earlier termination of this Agreement, at Parent’s reasonable request, the Company shall use commercially reasonable efforts to cooperate with and provide reasonable assistance to Parent and its Representatives in Parent’s efforts to investigate and confirm the existence of, and where applicable take such investigation shall not unreasonably disrupt actions as are necessary to file and/or obtain, all Registration Certificates that in Parent’s reasonable good faith determination are required by Law to be so filed and/or obtained with respect to all Registrable Mobile Assets of the Company's operationsCompany and the Company Subsidiaries. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby furnished pursuant to this Agreement shall be "Confidential Information" for purposes subject to the mutual confidentiality agreement, dated as of the Confidentiality Agreement dated February September 19, 2003 2023, between Parent and the Company (the "“Confidentiality Agreement")”) and, to the extent such information is specifically subject thereto, the terms of which shall continue in force until the Effective Time; provided that Parentclean team confidentiality agreement, Merger Sub dated November 29, 2023, between Parent and the Company may disclose such information as may be necessary in connection with seeking (the “Clean Team Agreement”); provided, that Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding consent and agree that all information referenced in Section 8.3 may only be shared with and delivered to the foregoing, the Company shall not be required Financing Sources pursuant to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms and conditions of the relevant contract, as applicableConfidentiality Agreement and the Clean Team Agreement. No information or knowledge obtained in any investigation pursuant to this Section 5.04(a) 6.2 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto made by the Company or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party Parent pursuant to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (WillScot Mobile Mini Holdings Corp.), Agreement and Plan of Merger (McGrath Rentcorp), Agreement and Plan of Merger (WillScot Mobile Mini Holdings Corp.)
Access to Information; Confidentiality. Subject (a) The Company shall, and shall cause its officers, employees, counsel, financial advisors and other representatives to, afford to applicable lawRemSleep Holdings and its representatives reasonable access during normal business hours during the period prior to the Effective Time to its and to the Company’s properties, books, contracts, commitments, personnel and records and, during such period, the Company shall, and shall cause its officers, employees and representatives to, furnish promptly to RemSleep Holdings all information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. For the purposes of determining the accuracy of the representations and warranties of RemSleep Holdings set forth herein and compliance by RemSleep Holdings of its obligations hereunder, during the period prior to the Effective Time, RemSleep Holdings shall provide the Company and its Subsidiaries representatives with reasonable access during normal business hours to its properties, books, contracts, commitments, personnel and records as may be necessary to enable the Company to confirm the accuracy of the representations and warranties of RemSleep Holdings set forth herein and compliance by RemSleep Holdings of its obligations hereunder, and, during such period, RemSleep Holdings shall, and shall afford cause its officers, employees and representatives to, furnish promptly to Parentthe Company upon its request (i) a copy of each report, Merger Sub schedule, registration statement and their financing sources other document filed by it during such period pursuant to the requirements of federal or state securities laws and their (ii) all other information concerning its business, properties, financial condition, operations and personnel as such other party may from time to time reasonably request. Except as required by law, each of the Company and RemSleep Holdings will hold, and will cause its respective directors, officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior and affiliates to the Effective Time to their respective propertieshold, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All any nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeconfidence.
Appears in 3 contracts
Samples: Exchange Agreement (RemSleep Holdings Inc.), Exchange Agreement (RemSleep Holdings Inc.), Exchange Agreement (RemSleep Holdings Inc.)
Access to Information; Confidentiality. Subject to applicable lawLaw and any applicable Judgment, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement pursuant to Section 8.01, upon reasonable notice, each of Parent and the Company shall, and its shall cause each of their respective Subsidiaries shall to, afford to Parent, Merger Sub each other and their financing sources and to their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective officers, employees, agents, properties, books, contracts, commitments Contracts and records andof Parent, during such periodthe Company or their respective Subsidiaries, as applicable (other than any of the foregoing that relate to the negotiation and execution of this Agreement, or, except as expressly provided in Section 5.03 to any Company Takeover Proposal) and Parent or the Company, as applicable, shall, and shall cause its Subsidiaries to, furnish promptly to the other party and such other party’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall such other party may reasonably request; providedprovided that such requesting party and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the providing party; provided further, however, that neither Parent, the Company nor any of their respective Subsidiaries shall be obligated to provide such investigation shall not unreasonably disrupt access or information if such party determines, in its reasonable judgment, that doing so is reasonably likely to (i) violate applicable Law or an applicable Judgment or (ii) jeopardize the protection of an attorney-client privilege, attorney work product protection or other legal privilege. In any such event, Parent or the Company's operations, as applicable, shall, and shall cause its Subsidiaries to, use its reasonable best efforts to communicate, to the extent feasible, the applicable information in a way that would not violate applicable Law, Judgment or obligation or risk waiver of such privilege or protection or risk such liability, including entering into a joint defense agreement, common interest agreement or other similar arrangement. All nonpublic requests for information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby made pursuant to this Section 6.02 shall be "Confidential Information" for purposes of directed to the Confidentiality Agreement dated February 19, 2003 between Parent and executive officer or other Person designated by the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until other party. Until the Effective Time; , all information provided that Parent, Merger Sub and the Company may disclose such information as may will be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required subject to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractletter agreement dated as of March 27, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to 2017, by and among the obligations of Company and Parent (the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cincinnati Bell Inc), Agreement and Plan of Merger (Hawaiian Telcom Holdco, Inc.), Agreement and Plan of Merger (Cincinnati Bell Inc)
Access to Information; Confidentiality. Subject (a) From the date of this Agreement to applicable lawthe Effective Time, the Company shall, and its Subsidiaries shall afford cause each Company Subsidiary and each of their respective directors, officers, employees, accountants, consultants, legal counsel, advisors, agents and other representatives, (collectively, “Company Representatives”) to: (i) provide to Parent, Merger Sub and their financing sources Merger LLC and their respective directors, officers, employees, accountants, consultants, legal counsel, financial advisors advisors, agents and other representatives (collectively, the "“Parent Representatives"”) reasonable access during normal business hours in such a manner as not to interfere unreasonably with the operation of any business conducted by the Company or any Company Subsidiary, upon reasonable advance notice throughout the period prior to the Effective Time Company, to their respective the officers, employees, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books, contracts, commitments contracts and records and, during such period, shall thereof (including Tax Returns) and (ii) furnish promptly such information concerning its businessesthe business, properties properties, contracts, assets and personnel liabilities of the Company and Company Subsidiaries as Parent or Merger Sub shall the Parent Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide (or to cause any Company Subsidiary to) afford such access or furnish such information which it reasonably to the extent that the Company believes it may that doing so would: (A) result in the loss of attorney-client privilege (provided that the Company shall use its reasonable efforts to allow for such access or disclosure in a manner that does not provide to Parent by reason result in a loss of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege), (B) result in the disclosure of any trade secrets of third parties or violate any obligations of the Company or any Company Subsidiary with respect to confidentiality to any third party or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is required to keep confidential by reason party, (C) result in a competitor of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant any Company Subsidiary to, provide the maximum amount of that receiving information (or shall endeavor to otherwise convey that information in a manner) that is consistent with competitively sensitive or (D) breach, contravene or violate any applicable Law (including the applicable lawHSR Act or any other antitrust or competition Law). Parent agrees to indemnify and hold the Company and Company Subsidiaries harmless from any and all claims and liabilities, rule including related costs and expenses, resulting from the action of any Parent Representative or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation any information provided to such Parent Representatives pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-45.3(a); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Agl Resources Inc), Agreement and Plan of Merger (Nicor Inc)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information, the Company shall, and shall cause its Subsidiaries shall to, afford to Parent, Merger Sub the Purchaser and their financing sources and their respective accountants, counsel, financial advisors and other the Purchaser’s representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments Contracts and records and, during such period, shall of the Company and its Subsidiaries and furnish promptly to the Purchaser such information concerning its businesses, their respective businesses and properties and personnel as Parent or Merger Sub shall the Purchaser may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may not provide if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to Parent by reason a third-party or jeopardize the protection of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, or which privilege that the Company or any Subsidiary of its Subsidiaries would be entitled to assert, if the Company reasonably believes that undermining such privilege would adversely affect in any material respect the Company’s or its Subsidiary’s position in any pending, or what the Company believes in good faith is required likely to keep confidential be future, litigation; provided, however, that in each case (i) the parties hereto shall cooperate to find a way to allow disclosure of such information to the extent doing so would not (in the good faith view of the Company) reasonably be likely to (A) result in a violation of the applicable Law, Contract or obligation of confidentiality or (B) undermine the applicable privilege and (ii) if any information is not disclosed due to the preceding proviso, the Company shall notify the Purchaser in writing (to the extent not prohibited by reason the applicable Law, Contract or obligation, and except as would undermine the applicable privilege) of contract, agreement or understanding with third parties; provided that, the subject matter of any such information and the facts giving rise to such failure to disclose such information. Except with respect to any such informationthe Required Financial Information and other information that may be necessary to disclose in connection with the Financing, until the Closing, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor provided will be subject to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Confidentiality Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Amr Corp), Stock Purchase Agreement (American Airlines Inc)
Access to Information; Confidentiality. Subject (a) During the Interim Period, to the extent permitted by applicable lawLaw and contracts, and subject to the reasonable restrictions imposed from time to time upon advice of outside counsel, the Company shall and its Subsidiaries shall cause each of the Target Companies and the Asset Sellers to afford to Parent, Merger Sub and their financing sources the Purchasers and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours and upon reasonable advance written notice throughout the period prior to the Effective Time to all of their respective properties, offices, books, contracts, commitments commitments, personnel and records andrecords. In addition, during the Interim Period, the Company shall, and shall cause the Target Companies and the Asset Sellers to, furnish reasonably promptly to the Purchasers (i) a copy of each report, schedule, registration statement and other document filed by it during such periodperiod pursuant to the requirements of federal or state securities Laws, shall furnish promptly such and (ii) all other information (financial or otherwise) concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall either Purchaser may reasonably request. No Purchaser shall be permitted to conduct or cause to be conducted any environmental investigation or other invasive sampling or testing (including but not limited to soil or ground water sampling) of any Company Property based on information existing (whether known or unknown) as of the date of this Agreement without the Company’s prior written consent, which consent shall be in the Company’s sole discretion to grant or deny; provided, however, such investigation the Company shall not unreasonably disrupt promptly notify the Company's operations. All nonpublic information provided toPurchasers in writing of any new discovery of any Hazardous Substances on, under or obtained by, Parent, Merger Sub about any Company Property or any new knowledge by the Company of suspected or actual violations of Environmental Laws on any such financing source in connection Company Property, and the Purchasers shall be permitted to conduct or cause to be conducted any environmental investigation or other invasive sampling or testing (including but not limited to soil or ground water sampling) of any such Company Property upon receipt of such written notice; provided, further, that the Company shall provide each Purchaser, at its own expense, with the transactions contemplated hereby shall right to such reasonable access to each Company Property during normal business hours and upon reasonable advance written notice in order to prepare or cause to be "Confidential Information" for purposes prepared surveys, inspections, engineering studies, environmental assessments and other tests, examination or studies of environmental matters relating to the Company Property that originates during the Interim Period that the Company deems to be reasonably necessary, so long as such access or activities do not unduly interfere with any Target Company’s or Asset Seller’s operation of each such Company Property in the ordinary course of business, and each Purchaser agrees that any information disclosed or discovered from such activities will be subject to the provisions of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "applicable Confidentiality Agreement"). For the avoidance of doubt, the terms of which shall continue in force until the Effective Time; provided each Purchaser will use its reasonable best efforts to minimize any disruption to any Target Company’s or Asset Seller’s business that Parentmay result from its requests for access, Merger Sub data and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalshereunder. Notwithstanding the foregoing, the neither any Target Company nor any Asset Seller shall not be required by this Section 8.5 to provide any information which it reasonably believes it may not provide the Purchasers, their financing sources or their respective Representatives with access to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that disclose information (or shall endeavor w) relating to otherwise convey that information in a mannerthe consideration, negotiation and performance of this Agreement and related agreements, (x) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or subject to the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition a confidentiality agreement with a Third Party entered into prior to the obligations Effective Date or entered into after the Effective Date in the ordinary course of business consistent with past practice (provided, however, that the parties hereto. Notwithstanding anything herein Target Companies and the Asset Sellers shall use their reasonable best efforts to obtain the contrary, any party to this Agreement (and each employee, representative, or other agent required consent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating Third Party to such U.S. "tax treatment" access or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4disclosure); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date disclosure of which would violate any Law or applicable fiduciary duty (provided, however, that the public announcement Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of the transactions contemplated by this Agreementany Law or applicable fiduciary duty), or (z) that is subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the date of execution of this Agreement. Moreover, notwithstanding anything herein Target Companies and the Asset Sellers shall use their reasonable best efforts to allow for such access or disclosure to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or maximum extent that does not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed result in a manner consistent with loss of any such purposeattorney-client, attorney work product or other legal privilege).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CNL Lifestyle Properties Inc), Purchase and Sale Agreement (Epr Properties)
Access to Information; Confidentiality. Subject (a) The Company shall, and shall cause its Subsidiaries, to applicable law, the Company (i) provide to Parent and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable Representatives access during normal business hours upon reasonable notice throughout the period prior to the Effective Time Closing upon reasonable prior notice to their respective the officers, employees, agents, properties, books, contracts, commitments books and records andof the Company and its Subsidiaries, during such period, shall and (ii) furnish promptly such information concerning the Company and its businesses, properties and personnel Subsidiaries as Parent or Merger Sub shall any of its Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which such access if it reasonably believes determines that it may not provide to Parent by reason would unreasonably disrupt or impair the business or operations of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableits Subsidiaries. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty Nothing in this Agreement of any party hereto shall require the Company or any condition of its Subsidiaries to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" information would result in a waiver of attorney-client privilege, work product doctrine or "tax structure," similar privilege or violate any non-public commercial or financial information) that are provided to confidentiality obligation of such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning party existing as of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. MoreoverNothing in this Agreement shall require the Company or any of its Subsidiaries to permit any inspection, notwithstanding anything herein or to disclose any information, that in the reasonable judgment of the Company or any of its Subsidiaries, would result in (i) the disclosure of any trade secrets of third parties or violate any of its obligations with respect to confidentiality if the Company or any of its Subsidiaries shall have used reasonable best efforts to obtain the consent of such third party to such inspection or disclosure or (ii) any violation of Laws relating to the contrarysharing of information between competitors, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is it being understood that the transactions contemplated by Company and its Subsidiaries shall provide extracts, summaries, aggregations or other information to the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed greatest extent practicable in a manner consistent with that does not result in any such purposeviolation or improper disclosure.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Earthlink Inc), Agreement and Plan of Merger (Itc Deltacom Inc)
Access to Information; Confidentiality. Subject to applicable lawLaw, the Company CTWS shall, and shall cause each of its Subsidiaries shall to, afford to Parent, Merger Sub SJW and their financing sources and their respective accountants, counsel, financial advisors and other representatives SJW Representatives (the "Parent Representatives"including Financing Sources) reasonable access during normal business hours upon reasonable notice throughout the period prior from the date of this Agreement to the earlier of the Effective Time or the termination of this Agreement pursuant to their respective propertiesArticle VIII, to all its properties (including for purposes of conducting environmental site assessments; provided that no subsurface sampling or invasive testing shall be conducted as part of any such assessment), books, contracts, commitments commitments, personnel and records and, during such period, CTWS shall, and shall cause each of its Subsidiaries to, furnish promptly to SJW (i) to the extent not publicly available, a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of securities Laws and (ii) all other information concerning its businessesbusiness, properties and personnel as Parent SJW may reasonably request (it being understood that, subject to the Confidentiality Agreement or Merger Sub shall reasonably requestotherwise on a confidential basis subject to the Commitment Letter or the related engagement letter, as applicable, SJW may furnish any such documents or information to SJW Representatives (including Financing Sources)); provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic that CTWS may withhold any document or information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), x) that is subject to the terms of which shall continue in force until the Effective Time; a confidentiality agreement with a third party (provided that Parent, Merger Sub and SJW shall use its reasonable best efforts to obtain the Company may disclose required consent of such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, such access or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4disclosure); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) subject to any attorney-client privilege or protections, including attorney work-product protections and confidentiality protections (provided that the date withholding party shall use its reasonable best efforts to allow for such access or disclosure (or as much of the public announcement it as possible) in a manner that does not result in a loss of the transactions contemplated by this Agreementattorney-client privilege or protections), or (z) if the date sharing of execution such document or information would result in a violation of this Agreementapplicable Law. Moreover, notwithstanding anything herein If any material is withheld by such party pursuant to the contraryproviso to the preceding sentence, there such party shall inform the other party as to the general nature of what is being withheld. Without limiting the generality of the foregoing, CTWS shall, within five Business Days of request by SJW, provide to SJW the information described in Rule 14a-7(a)(2)(ii) under the Exchange Act and any information to which a holder of CTWS Common Stock would be entitled under Sections 33-946 and 33-704 of the CBCA. All information exchanged pursuant to this Section 6.02 shall be no limitation on any party's ability subject to consult any tax adviserthe confidentiality agreement dated August 10, whether or not independent from 2016 between SJW and CTWS (the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this “Confidentiality Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SJW Group), Agreement and Plan of Merger (Connecticut Water Service Inc / Ct)
Access to Information; Confidentiality. Subject to applicable lawThe Company shall, the Company and shall cause its Subsidiaries shall afford to Parentofficers, Merger Sub and their financing sources and their respective employees, accountants, counsel, consultants, financial advisors and other representatives (the "Parent Representatives to, afford to Parent, and to Parent’s officers, employees, accountants, counsel, consultants, financial advisors and other Representatives") , reasonable access during normal business hours upon reasonable notice throughout during the period prior to the earlier of the Effective Time and the termination of this Agreement to their respective all of its and its Subsidiaries’ properties, books, contracts, commitments books and records and to those employees and Representatives of the Company to whom Parent requests access, and, during such period, the Company shall furnish to Parent, as promptly such as reasonably practicable, all financial, operating and other data and information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall through its officers, employees, accountants, counsel, consultants, financial advisors and other Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall not be required to provide access to or disclose information where the Company reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of the Company or any information which it reasonably believes it may not provide of its Subsidiaries or conflict with or violate any Law (including antitrust Laws) or any Contract to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contract, agreement or understanding with third parties; a party (provided that, with respect to any such information, that the Company shallshall in such event use reasonable best efforts to avoid such constraints on disclosure, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information including entering into a joint defense agreement in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicablecustomary form). No investigation or access permitted, or knowledge obtained, pursuant to this Section 5.04(a) 7.01 shall affect or be deemed to modify any representation representation, warranty, covenant or warranty agreement made by the Company hereunder or otherwise prejudice in this Agreement any way the rights and remedies of Parent or Sub hereunder, nor shall any party hereto such investigation, access or any condition knowledge be deemed to affect or modify Parent’s or Sub’s reliance on the obligations of representations, warranties, covenants and agreements made by the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (Company in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. MoreoverExcept for disclosures expressly permitted by the Confidentiality Agreement, notwithstanding anything herein Parent shall, in accordance with the Confidentiality Agreement, keep confidential and not disclose, and shall cause its officers, employees, accountants, counsel, consultants, financial advisors and other Representatives to keep confidential and not disclose, all Confidential Information (as defined in the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether Confidentiality Agreement) directly or not independent indirectly received from the parties, regarding the U.S. "tax treatment" Company or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeits Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Smith & Nephew PLC), Agreement and Plan of Merger (Osiris Therapeutics, Inc.)
Access to Information; Confidentiality. Subject (a) During the Interim Period, to the extent permitted by applicable lawLaw and contracts, each Party shall, and shall cause each of its Subsidiaries to, (i) furnish the Company and its Subsidiaries shall afford to or Parent, Merger Sub as applicable, with such financial and their financing sources and their respective accountants, counsel, financial advisors operating data and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior information with respect to the Effective Time to their respective business, properties, offices, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel of the Company and the Company Subsidiaries or Parent, Parent OP and Parent Subsidiaries, as Parent applicable, as the Company or Merger Sub shall Parent, as applicable, may from time to time reasonably request, and (ii) with respect to the Company and the Company Subsidiaries and subject to the terms of the Company Leases, facilitate reasonable access for Parent and its authorized Representatives during normal business hours, and upon reasonable advance notice, to all Company Properties; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No no investigation pursuant to this Section 5.04(a) 7.6 shall affect or be deemed to modify any representation of the representations or warranty warranties made by the Company Parties or the Parent Parties, as applicable, hereto and all such access shall be coordinated through the Company or Parent, as applicable, or its respective designated Representatives, in accordance with such reasonable procedures as they may establish. Notwithstanding the foregoing, neither the Company nor Parent shall be required by this Section 7.6 to provide the other Party or the Representatives of such other Party with access to or to disclose information (A) that is subject to the terms of a confidentiality agreement with a Third Party entered into prior to the date of this Agreement or entered into after the date of this Agreement in the ordinary course of business consistent with past practice (if the Company or Parent, as applicable, has used commercially reasonable efforts to obtain permission or consent of such Third Party to such disclosure), (B) the disclosure of which would violate any Law or legal duty of the Party or any of its Representatives (provided, however, that the Company or Parent, as applicable, shall use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Law or legal duty), (C) that is subject to any attorney-client, attorney work product or other legal privilege or would cause a risk of a loss of privilege to the disclosing Party (provided, however, that the Company or Parent, as applicable, shall use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not result in a loss of such attorney-client, attorney work product or other legal privilege) or (D) if it reasonably determines that such access is reasonably likely to materially disrupt, impair or interfere with its, or its Subsidiaries’, business or operations; provided, however, that the Parties will work in good faith to determine a means to provide access that will not materially disrupt, impair or interfere with such business or operations. Each of the Company and Parent will use its commercially reasonable efforts to minimize any disruption to the businesses of the other Party that may result from the requests for access, data and information hereunder. Prior to the Partnership Merger Effective Time, each of the Company Parties and each of the Parent Parties shall not, and shall direct their respective Representatives and Affiliates not to, contact or otherwise communicate (for the avoidance of doubt, other than any public communications otherwise permitted by this Agreement) with parties with which such Party knows the other Party has a business relationship (including tenants/subtenants) regarding the business of such other Party or this Agreement and the transactions contemplated hereby without the prior written consent of such other Party (such consent not to be unreasonably withheld, conditioned or delayed); provided that, notwithstanding the foregoing or anything else in this Agreement of any party hereto or any condition to in the obligations of the parties hereto. Notwithstanding anything herein Confidentiality Agreement to the contrary, a Party and its respective Representatives and Affiliates may contact or otherwise communicate with such parties without any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) consent of the transactions contemplated hereunder and all materials of any kind other Party (including opinions I) in pursuing its own business activities (operating in the ordinary course) or other tax analysis, but without disclosure of identifying information or, except to (II) in connection with the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions activities contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this AgreementSection 7.18. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.84
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Prologis, L.P.), Agreement and Plan of Merger (Liberty Property Limited Partnership)
Access to Information; Confidentiality. Subject (a) During the Interim Period, to the extent permitted by applicable lawLaw and contracts, and subject to the reasonable restrictions imposed from time to time upon advice of counsel, the Company shall, and its shall cause each of the Company Subsidiaries shall to, afford to Parent, Merger Sub and their Parent’s financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours and upon reasonable advance notice throughout the period prior to the Effective Time to all of their respective properties, offices, books, contracts, commitments commitments, personnel and records and, during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish reasonably promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities Laws, and (ii) all other information (financial or otherwise) concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably request; provided. Parent, howeverat its own expense, shall have the right to such investigation shall reasonable access during normal business hours and upon reasonable advance notice in order to prepare or cause to be prepared surveys, inspections, engineering studies, environmental assessments and other tests, examination or studies with respect to each Company Property that Parent deems to be reasonably necessary, so long as such access or activities do not unreasonably disrupt unduly interfere with the Company's operations’s operation of each such Company Property in the ordinary course of business. All nonpublic Parent will use its reasonable best efforts to minimize any disruption to the Company’s business that may result from its requests for access, data and information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalshereunder. Notwithstanding the foregoing, the Company shall not be required by this Section 7.4 to provide any information which it reasonably believes it may not provide Parent, Parent’s financing sources or their respective Representatives with access to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that disclose information (or shall endeavor w) relating to otherwise convey that information in a mannerthe consideration, negotiation and performance of this Agreement and related agreements, (x) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or subject to the terms of the relevant contract, as applicable. No investigation pursuant a confidentiality agreement with a third party entered into prior to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement this Agreement or entered into after the date of discussions relating this Agreement in the ordinary course of business consistent with past practice (provided, however, that the Company shall use its reasonable best efforts to obtain the transactions contemplated by this Agreementrequired consent of such third party to such access or disclosure), (y) the date disclosure of which would violate any Law or applicable fiduciary duty (provided, however, that the public announcement Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of the transactions contemplated by this Agreement, any Law or applicable fiduciary duty) or (z) that is subject to any attorney-client, attorney work product or other legal privilege (provided, however, that the date of execution of this Agreement. Moreover, notwithstanding anything herein Company shall use its reasonable best efforts to allow for such access or disclosure to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or maximum extent that does not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed result in a manner consistent with loss of any such purposeattorney-client, attorney work product or other legal privilege).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cole Credit Property Trust Inc), Agreement and Plan of Merger (American Realty Capital Properties, Inc.)
Access to Information; Confidentiality. Subject to applicable lawLaw, upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; providedprovided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third party, waive the protection of an attorney-client privilege or other legal privilege or expose the Company to risk of liability for disclosure of sensitive or Personal Information. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent by reason of applicable lawthat it is withholding such access or information and shall use its reasonable best efforts to communicate, rules or regulations, which constitutes information protected by attorney/client privilege, or which to the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such informationextent feasible, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with would not violate the applicable lawLaw, rule Contract or regulationobligation or risk waiver of such privilege. All requests for information made pursuant to this Section 5.07 shall be directed to the Person designated by the Company. Until the Effective Time, the maintenance of that privilege or information provided will be subject to the terms of the relevant contractconfidentiality agreement dated as of May 30, 2018, by and between the Company and Parent (as applicable. No investigation pursuant may in the future be amended from time to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindtime, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Navigators Group Inc), Agreement and Plan of Merger (Hartford Financial Services Group Inc/De)
Access to Information; Confidentiality. Subject During the Interim Period, subject to applicable lawLaw, the Company and its Subsidiaries Sagicor Group shall afford to ParentAlignvest, Merger Sub and their financing sources and their respective accountantsto Alignvest’s Representatives, counselreasonable access, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours and upon reasonable prior notice throughout to Sagicor, to all of the period prior Sagicor Group’s properties, personnel, Contracts, books and records as Alignvest may from time to time reasonably request. Notwithstanding any of the foregoing, any such investigation or consultation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Sagicor Group or otherwise result in any significant interference with the prompt and timely discharge by their employees or other Representatives of their normal duties. The Parties acknowledge that all information provided by or on behalf of the Sagicor Group or any of their Representatives in connection with this Agreement to Alignvest or any of its Representatives shall be “Confidential Information” under the Confidentiality and Non-Disclosure Agreement, by and between Alignvest and Sagicor, dated as of September 28, 2017 (the “Confidentiality Agreement”), which Confidentiality Agreement shall continue in full force and effect in accordance with its terms until the Effective Time and shall thereafter be terminated and of no further force and effect. Subject to Section 9.14, Alignvest shall indemnify the Sagicor Group and their respective propertiesAffiliates and Representatives from, booksand hold the Sagicor Group and their Affiliates and Representatives harmless against, contractsany and all claims, commitments losses, liabilities, damages, judgments, inquiries, fines and records andreasonable fees, during such periodcosts, shall furnish promptly such information concerning its businessesexpenses, properties including attorneys’ fees and personnel as Parent disbursements, and the cost of enforcing this indemnity arising out of or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or resulting from any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes breach of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose6.01.
Appears in 2 contracts
Samples: Arrangement Agreement (Sagicor Financial Co Ltd.), Arrangement Agreement
Access to Information; Confidentiality. Subject to (a) To the extent permitted by applicable lawLaw, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective to Parent's officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") , reasonable access (including for the purpose of coordinating integration activities and transition planning with the employees of the Company and its Subsidiaries) during normal business hours and upon reasonable prior notice throughout to the Company during the period prior to the Effective Time or the termination of this Agreement to their respective all its and its Subsidiaries' properties, books, contractsContracts, commitments commitments, personnel and records records, but only to the extent that such access does not unreasonably interfere with the business or operations of the Company and its Subsidiaries, and, during such period, the Company shall furnish promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities Laws and (b) all other information concerning its businessesand its Subsidiaries' business, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation that the Company shall not unreasonably disrupt be required to (or to cause any of its Subsidiaries to) so confer, afford such access or furnish such copies or other information to the Company's operationsextent that doing so would result in the loss of attorney-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege). All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with Except for disclosures expressly permitted by the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement dated February 19as of August 4, 2003 2004 between Parent and the Company (as it may be amended from time to time, the "Confidentiality Agreement"), Parent shall hold, and shall cause its officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the terms Company, directly or indirectly, in confidence in accordance with the Confidentiality Agreement. The Confidentiality Agreement shall survive any termination of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsthis Agreement. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractConfidentiality Agreement, Parent and the Company agree that until the earlier of the consummation of this Agreement or the six month anniversary of the date of the termination of this Agreement, as applicable, each party and its respective Subsidiaries shall not, without the other party's prior written consent, directly or indirectly solicit for employment (other than through advertising in newspapers or periodicals of general circulation or recruiters' searches, in each case not specifically directed at the other party's employees) any person currently employed by the other party or any of its Subsidiaries with whom it has contact or who is identified to such party in connection with the transactions contemplated by this Agreement. No investigation pursuant to this Section 5.04(a) shall 5.02 or information provided or received by any party hereto pursuant to this Agreement will affect any of the representations or be deemed to modify any representation or warranty warranties of the parties hereto contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Guidant Corp), Agreement and Plan of Merger (Johnson & Johnson)
Access to Information; Confidentiality. Subject to applicable lawThe Company shall, and the Company shall cause the Subsidiaries to, afford to NESR and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors advisors, directors, officers and other representatives (the "Parent Representatives") employees reasonable access access, during normal business hours upon reasonable notice throughout the period prior to the Effective Time earlier of NESR Closing and the termination of this Agreement in accordance with the terms hereof, to the Company’s and the Subsidiaries’ respective books, financial information (including working papers and data in the possession of the Company’s or the Subsidiaries’ or their respective propertiesindependent public accountants, booksinternal audit reports, contractsand “management letters” from such accountants with respect to the Company’s or any of the Subsidiaries’ systems of internal control), commitments Contracts and records of the Company and the Subsidiaries to the extent required for the purposes of monitoring the financial performance of the Company, preparing for the transition of the ownership of the Company to NESR or preparing the Proxy and, during such period, shall furnish promptly as soon as reasonably practicable such information in the possession or control of the Company or any Subsidiary concerning its the businesses, properties and personnel of the Company and the Subsidiaries as Parent or Merger Sub NESR shall reasonably requestrequest for any such purpose; provided, however, such investigation shall not unreasonably disrupt the Company's operations’s operations in any material manner. The Company shall authorize and direct the appropriate directors, managers and employees of each such Subsidiary to discuss matters involving the operations and business of the Company or such Subsidiary, as the case may be, with NESR during normal business hours and upon reasonable notice and then only to the extent that it will not and is not reasonably likely to disrupt the Company’s operations in any material manner. All nonpublic information provided to, or obtained by, Parentthe Purchaser, Merger Sub the Company, or any such financing source the Selling Stockholders in connection with relation to the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19subject matter of, 2003 between Parent and the Company (the "Confidentiality negotiations leading to, this Agreement"), including but not limited to the terms of which this Agreement, shall continue in force until be considered “Confidential Information” and kept strictly confidential by the Effective TimeParties; provided that Parent, Merger Sub the Purchaser and the Company may disclose such information as may be necessary is necessary: (i) to fulfill the Condition; or (ii) to include in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableProxy. No investigation information provided to or obtained by the Purchaser pursuant to this Section 5.04(a) 6.1 shall limit or otherwise affect the remedies available hereunder to the Purchaser (including the Purchaser’s right to any damages), or be deemed to modify any representation the warranties of, or warranty in this Agreement of any party hereto or any condition the conditions to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindof, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeParties.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (National Energy Services Reunited Corp.)
Access to Information; Confidentiality. Subject to applicable law(a) During the period from the date of this Agreement through the earlier of the Closing Date and the termination of the Agreement in accordance with Article VIII, the Company Seller shall give Purchaser and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other authorized representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, all books, contractsrecords, commitments offices and records and, during such period, shall furnish promptly such information concerning its businesses, other facilities and properties and personnel of the Business as Parent or Merger Sub shall Purchaser may from time to time reasonably request; provided, however, that any such investigation access shall be conducted in a manner not to interfere with the businesses or operations of the Business and none of Purchaser nor any of its Affiliates shall, directly or indirectly, conduct or cause any invasive sampling or testing with respect to the Leased Real Property without the prior written consent of Seller (which consent shall not be unreasonably disrupt withheld, conditioned or delayed). The Seller shall use commercially reasonable efforts to enable and assist Purchaser in the Company's operationspreparation and filing of audited financial statements with respect to the Business for the years ended December 31, 2013, 2014 and 2015 within seventy-five (75) days after the Closing Date. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source Notwithstanding anything to the contrary in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality this Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company Seller shall not be required to provide disclose any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilegePurchaser, or its authorized representatives, if doing so could violate any agreement or Law to which the Company Seller is a party or any Subsidiary to which the Business is required to keep confidential by reason subject. During the period from the date of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of the Closing or the termination of this Agreement in accordance with its terms, Purchaser agrees that it is not authorized to and shall not (xand shall not permit any of its employees, agents, representatives or Affiliates to) contact any employee, customer, supplier, distributor or other material business relation of the date of public announcement of discussions relating to Seller regarding the Businesses or the transactions contemplated by this AgreementAgreement without the prior consent of Seller (which consent shall not be unreasonably withheld, (y) the date conditioned or delayed). Each of the public announcement of parties shall execute such documents and other papers and perform such further acts as may reasonably be required or desirable to carry out the provisions hereof and the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposehereby.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Handy & Harman Ltd.)
Access to Information; Confidentiality. Subject (a) Except for competitively sensitive information as to which access, use and treatment is subject to applicable law, the Company Company, the FUMI Share Trust and its Subsidiaries their respective subsidiaries shall afford to Parent, Merger Sub and their financing sources the other parties and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to from the date hereof through the Effective Time to their respective properties, books, contractsContracts, commitments and records and, during such period, shall furnish promptly such information concerning its their businesses, properties and personnel as Parent or Merger Sub such parties shall reasonably requestrequest (including for purposes of determining the Escrow Amount); provided, however, that such investigation shall not unreasonably disrupt the Company's, the FUMI Share Trust's or their respective subsidiaries' operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub Gotham or any such financing source its Representative (as defined in the Confidentiality Agreement) in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19August 9, 2003 2001 between Parent Gotham and the Company (the "Confidentiality AgreementCONFIDENTIALITY AGREEMENT"), the terms of which shall continue in force until the Effective Time; provided that ParentGotham, Merger Sub GGC and the Company may disclose such information as may be necessary in connection with seeking the Parent GGP Required Statutory Approvals, the Company Required Approvals and the Company Required Statutory ApprovalsShareholder Approval. Notwithstanding the foregoingThe foregoing notwithstanding, the Company Company, the FUMI Share Trust and their respective subsidiaries shall not be required to provide any information which it reasonably believes it may not provide to Parent the other parties by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company Company, the FUMI Share Trust or any Subsidiary of their respective subsidiaries is required to keep confidential by reason of contract, agreement or understanding with third parties; provided thatprovided, with respect however, that in the event the Company, the FUMI Share Trust or their respective subsidiaries do not provide such information, each shall provide, in writing, to any the party requesting such information, the Company shall, reason or shall cause the relevant Subsidiary to, reasons for its refusal to provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Contribution (First Union Real Estate Equity & Mortgage Investments), Agreement and Plan of Merger and Contribution (Gotham Partners Lp /Ny/)
Access to Information; Confidentiality. Subject The Company covenants and agrees to applicable lawafford to Parent and to cause its Subsidiaries to afford to Parent, and its accountants, counsel, financing sources and other representatives, full access, during normal business hours from the date hereof until the Effective Time, to all properties, premises, books, contracts, records, financial and operating data, projections, forecasts, business plans, strategic plans, management, personnel, accountants, representatives, and other information relating to the Company and its Subsidiaries. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall afford be required to provide access to or to disclose information where such access or disclosure would impose an unreasonable burden on the Company, any Subsidiary or any employee of the Company or any such Subsidiary or would violate or prejudice the rights of the customers of the Company or any Subsidiary, jeopardize any attorney-client privilege or contravene any law, rule, regulation, order, judgment, decree, fiduciary duty or binding agreement entered into prior to the date of this Agreement. The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the restrictions of the preceding sentence apply. In the event of termination of this Agreement, Parent, Merger Acquisition Sub and the Company will deliver to the appropriate party all documents, work papers and other material so obtained before or after the execution hereof and will not themselves use, directly or indirectly, any information so obtained or otherwise obtained from the Company, Parent or Acquisition Sub hereunder, or in connection herewith, and will use their reasonable best efforts to have all such information kept confidential and not used in any way detrimental to the Company, Parent or Acquisition Sub. The Company agrees to cause its and its Subsidiaries' officers, employees, consultants, agents, accountants and attorneys to cooperate with the Parent, Acquisition Sub and their accountants, counsel, financing sources and other representatives in connection with such investigation of the Company and its Subsidiaries, including the preparation by Parent, Acquisition Sub and their financing sources of any offering memorandum or related documents. No investigation by the Parent or Acquisition Sub heretofore or hereafter made shall modify or otherwise affect any representations and their respective accountantswarranties of the Company, counselwhich shall survive any such investigation in accordance with the terms of this Agreement, financial advisors and other representatives (or the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior conditions to the Effective Time obligation of the Parent and Acquisition Sub to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with consummate the transactions contemplated hereby shall be "Confidential Information" for purposes hereby. The obligations of Parent and Acquisition Sub under this Section 4.3 are in addition to and not in limitation of the Confidentiality Agreement obligations of Citicorp Venture Capital, Ltd. under its letter agreement dated February 19May 5, 2003 between Parent 1999 with The Robixxxx-Xxxxxxxx Xxxpany, LLC as financial advisor to, and on behalf of the Company (the "Confidentiality Agreement"), the terms and each of which shall continue in force until the Effective Time; provided that Parent, Merger Parent and Acquisition Sub and the Company may disclose such information as may hereby agrees to be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent bound by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Confidentiality Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the same extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in though it were a manner consistent with such purposesignatory thereto.
Appears in 2 contracts
Samples: Merger Agreement (Conso International Corp), Merger Agreement (Cic Acquisition Sub Inc)
Access to Information; Confidentiality. Subject to Upon reasonable notice, and except as may otherwise be prohibited by applicable lawLaw, the Company each of Republic and its Allied shall, and shall cause each of their respective Subsidiaries shall to, afford to Parentthe other, Merger Sub and their financing sources and their respective accountantsto the other’s Representatives, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time to all their respective properties, books, contractsContracts, commitments commitments, personnel and records as Allied or Republic from time to time may reasonably request and, during such period, each of Allied and Republic shall, and shall cause each of their respective Subsidiaries to, furnish promptly to the other (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities Laws and (b) all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall the other may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, (i) either party may restrict the Company foregoing access to the extent that any applicable Law (including Laws relating to the exchange of information and all applicable Antitrust Laws) requires such party or its Subsidiaries to restrict or prohibit such access and (ii) nothing herein shall not be required require any party to provide any disclose information which it reasonably believes it may not provide to Parent by reason the extent such information would result in disclosure of applicable law, rules trade secrets or regulations, which constitutes information protected by a waiver of attorney/-client privilege, work product doctrine or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that similar privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify violate any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent confidentiality obligation of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" party (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such party shall use commercially reasonable efforts to permit such disclosure may not to be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with the protection of such purposeprivilege or to obtain any consent required to permit such disclosure to be made without violation of such confidentiality obligations, as applicable). The parties acknowledge and agree that nothing in this Section 7.03 shall require either Allied or Republic to take or allow any action that would unreasonably interfere with Allied’s, Republic’s or any of their respective Subsidiaries’ business or operations. All information exchanged pursuant to this Section 7.03 shall be subject to the Confidentiality Agreement, and the Confidentiality Agreement shall remain in full force and effect in accordance with its terms.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Allied Waste Industries Inc), Agreement and Plan of Merger (Republic Services Inc)
Access to Information; Confidentiality. Subject Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to applicable lawParent and its Representatives reasonable access, at Parent’s sole cost and expense, in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice throughout the period commencing on the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, to the properties, management personnel, Contracts, books and records of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information (to the extent not publicly available) concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as Parent or Merger Sub shall may reasonably requestbe requested; provided, however, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Acquisition Sub if such investigation shall not unreasonably disrupt disclosure would, in the reasonable judgment of the Company's operations. All nonpublic information provided to, (a) violate applicable Law or obtained by, Parent, Merger Sub the provisions of any Contract to which the Company or any of its Subsidiaries is a party or (b) jeopardize any attorney-client or other legal privilege (provided, in each case, that the Company shall give Parent notice of any information so withheld and the parties shall cooperate in seeking to allow disclosure of such financing source information in connection with the transactions contemplated hereby a manner that is not reasonably likely to cause significant competitive harm, violate applicable Law or Contract or cause any waiver of privilege); provided, further, that nothing herein shall be "Confidential Information" for purposes authorize Parent or its Representatives to undertake any environmental testing involving sampling of soil, groundwater, air or other environmental medium or similar invasive techniques at any of the Confidentiality Agreement dated February 19properties owned, 2003 between Parent and operated or leased by the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsor its Subsidiaries. Notwithstanding anything herein to the foregoingcontrary, the Company shall not be required to provide access or make any information which it reasonably believes it may not provide disclosure to Parent by reason of applicable law, rules pursuant to this Section 6.4 to the extent that such access or regulations, which constitutes information protected by attorney/client privilege, or which is reasonably pertinent to a litigation where the Company or any Subsidiary is required to keep confidential by reason of contractits Affiliates, agreement on the one hand, and Parent or understanding with third any of its Affiliates, on the other hand, are adverse parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation or access permitted pursuant to this Section 5.04(a) 6.4 shall affect or be deemed to modify any representation or warranty in this Agreement of made by the Company hereunder. Parent agrees that it will not, and will cause its Representatives and Affiliates (including Acquisition Sub) not to, use any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party information obtained pursuant to this Agreement (and each employee, representative, Section 6.4 for any competitive or other agent of such parties) may disclose purpose unrelated to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent Confidentiality Agreement shall apply with respect to information furnished by the Company, its Subsidiaries and the Company’s officers, employees and other Representatives hereunder and, if this Agreement is terminated prior to the Effective Time, the Confidentiality Agreement shall remain in full force and effect in accordance with its terms prior to giving effect to the execution of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeAgreement.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mr. Cooper Group Inc.), Agreement and Plan of Merger (Home Point Capital Inc.)
Access to Information; Confidentiality. Subject (a) Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to applicable lawthe Acquiring Parties and its Representatives all reasonable access, at the Acquiring Parties’ sole cost and expense, in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice throughout the period commencing on the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VIII, to the properties, personnel, contracts, books and records (including Tax Returns and workpapers) of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information (to the extent not publicly available) concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries (including accounting, tax, financing, operating, environmental and other data and information) as Parent or Merger Sub shall may reasonably requestbe requested, including, but not limited to, such access and information reasonably required by the Acquiring Parties and their respective Representatives in connection with the Arriver/Non-Arriver Separation Planning and Non-Arriver Extraction; provided, however, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to the Acquiring Parties or Merger Sub if such investigation shall not unreasonably disrupt disclosure would, in the reasonable judgment of the Company's operations. All nonpublic information provided to, (i) cause significant competitive harm to the Company or obtained by, Parent, Merger Sub or any such financing source in connection with its Subsidiaries if the transactions contemplated hereby shall be "Confidential Information" for purposes by this Agreement are not consummated, (ii) violate applicable Law or the provisions of any agreement to which the Company or any of its Subsidiaries is a party as of the Confidentiality Agreement dated February 19date hereof or (iii) jeopardize any attorney-client or other legal privilege; provided, 2003 between Parent in each case, that the Company shall give the Acquiring Parties notice of any information so withheld and the Company (parties hereto shall cooperate in seeking to allow disclosure of such information in a manner that is not reasonably likely to cause significant competitive harm, violate applicable Law or Contract or cause any waiver of privilege; provided, further, that nothing herein shall authorize the "Confidentiality Agreement")Acquiring Parties or their respective Representatives to undertake any environmental testing involving the sampling of soil, groundwater, air or other environmental medium or similar invasive techniques at any of the terms of which shall continue in force until the Effective Time; provided that Parentproperties owned, Merger Sub and operated or leased by the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsor its Subsidiaries. Notwithstanding anything herein to the foregoingcontrary, the Company shall not be required to provide access or make any disclosure to the Acquiring Parties pursuant to this Section 6.4 to the extent that such access or information which it is reasonably believes it may not provide pertinent to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which a litigation where the Company or any Subsidiary is required to keep confidential by reason of contractits Affiliates, agreement or understanding with third parties; provided thaton the one hand, with respect to and any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractAcquiring Parties or any of their respective Affiliates, as applicableon the other hand, are adverse parties. No investigation or access permitted pursuant to this Section 5.04(a) 6.4 shall affect or be deemed to modify any representation or warranty in made by the Company hereunder. Each of the Acquiring Parties agrees that it will not, and will cause its Representatives and Affiliates (including Merger Sub) not to, use any information obtained pursuant to this Agreement of Section 6.4 for any party hereto competitive or any condition other purpose unrelated to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement consummation of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Veoneer, Inc.), Agreement and Plan of Merger (Qualcomm Inc/De)
Access to Information; Confidentiality. Subject to applicable law, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon Upon reasonable notice throughout the period prior and subject to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between the Parent and the Company (the "Confidentiality Agreement"), the terms Company shall, and shall cause each of which shall continue in force until its Subsidiaries to, afford to the Parent and to its officers, employees, accountants, counsel, financial advisors and other representatives, reasonable access during normal business hours during the period prior to the Effective Time; provided that ParentTime to all its properties, Merger Sub books, contracts, commitments, personnel and records and, during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish promptly to the Parent (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws and (b) all other information concerning its business, properties and personnel as the Parent may reasonably request (including the Company's outside accountants work papers and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory ApprovalsCompany's monthly financial statements). Notwithstanding the foregoing, the The Company shall not be required to provide access to or disclose information where such access or disclosure would contravene any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules rule, regulation, order or regulations, which constitutes information protected decree. No review pursuant to this Section 5.5 shall limit the Parent's or Merger Sub's reliance on or the enforceability of any representation or warranty made by attorney/client privilege, or which the Company or herein. The Parent will hold, and will cause its officers, employees, accountants, counsel, financial advisors and other representatives and affiliates to hold, any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that nonpublic information in a manner) that is consistent accordance with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableConfidentiality Agreement. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify Notwithstanding the foregoing and any representation or warranty in this Agreement of any party hereto or any condition to the obligations provisions of the parties hereto. Notwithstanding anything herein Confidentiality Agreement to the contrary, any party the parties to this Agreement (and each any employee, representative, representative or other any agent of such partiesany party) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "treatment and tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) structure of the transactions transaction contemplated hereunder and all materials of any kind hereby (including opinions or other tax analysisthe "Transaction"), but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until beginning on the earlier of (xi) the date of public announcement of discussions discussion relating to the transactions contemplated by this AgreementTransaction, (yii) the date of public announcement of the Transaction or (iii) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover; provided, notwithstanding anything herein however, none of the parties (nor any employee, representative or any agent thereof) may disclose any information to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is extent that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed such disclosure could result in a manner consistent with such purposeviolation of any federal or state securities law.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Horizon Organic Holding Corp), Agreement and Plan of Merger (Dean Foods Co/)
Access to Information; Confidentiality. Subject to applicable lawLaw and any applicable Judgment, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement pursuant to Section 8.01, upon reasonable notice, the Company shall, and its shall cause the Company Subsidiaries shall to, afford to Parent and Parent, Merger Sub ’s Representatives and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Debt Financing Sources reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective officers, employees, agents, properties, books, contracts, commitments Contracts and records andof the Company and the Company Subsidiaries (other than any of the foregoing that relate to the negotiation and execution of this Agreement or any similar transaction with a third party or, during such periodexcept as expressly provided in Section 5.02, to any Company Takeover Proposal) and the Company shall, and shall cause the Company Subsidiaries to, furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; providedprovided that Parent and its Representatives and Debt Financing Sources shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company and the Company Subsidiaries; provided further, however, such investigation shall not unreasonably disrupt that neither the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or Company nor any such financing source in connection with the transactions contemplated hereby Company Subsidiary shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and obligated to provide such access or information if the Company determines, in its reasonable judgment, that doing so is reasonably likely to (i) violate applicable Law or an applicable Judgment or (ii) jeopardize the "Confidentiality Agreement"), the terms protection of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, attorney work product protection or which other legal privilege held by the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to Company. In any such informationevent, the Company shall, or and shall cause the relevant Subsidiary Company Subsidiaries to, provide use its reasonable best efforts to communicate, to the maximum amount of that information (or shall endeavor to otherwise convey that extent feasible, the applicable information in a manner) way that is consistent with the would not violate applicable lawLaw, rule Judgment or regulation, the maintenance obligation or risk waiver of that such privilege or protection or risk such liability, including entering into a joint defense agreement, common interest agreement or other similar arrangement. All requests for information made pursuant to this Section 6.02 shall be directed to the executive officer or other Person designated by the Company. Until the Effective Time, all information provided will be subject to the terms of the relevant contractletter agreement dated as of October 18, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to 2018, by and among the obligations of Company and Brookfield Infrastructure Group LLC (the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cincinnati Bell Inc), Agreement and Plan of Merger (Cincinnati Bell Inc)
Access to Information; Confidentiality. Subject to applicable lawApplicable Law, the Company Titanium agrees that it shall, and shall cause each of its Subsidiaries shall to, afford to ParentSilver and Silver’s Representatives reasonable access, Merger Sub upon reasonable advance written notice and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout hours, during the period prior to the Effective Time Time, to their respective propertiesall its properties (other than for purposes of invasive testing), books, contracts, commitments commitments, personnel and records and, during such period, Titanium shall, and shall cause each of its Subsidiaries to, furnish promptly such to Silver all other information (other than information regarding any Acquisition Proposal) concerning its businessesbusiness, properties and personnel as Parent may be reasonably requested (in each case, in a manner so as to not interfere in any material respect with the normal business operations of Titanium or Merger Sub shall reasonably requestits Subsidiaries); provided, however, that all such investigation access shall be coordinated through Titanium or its Representatives in accordance with such procedures as they may reasonably establish; and provided, further, that Titanium shall not unreasonably disrupt the Company's operations. All nonpublic information provided tobe required to permit such access or make such disclosure, if such disclosure or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall access would reasonably be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company likely to (the "Confidentiality Agreement"), i) violate the terms of which any confidentiality agreement or any other Contract with a third party, (ii) result in the loss of any attorney-client privilege, (iii) violate or materially impair the contractual rights of its customers and tenants or (iv) violate any Applicable Law, it being agreed that, with respect to subclauses (i), (ii) and (iii), Titanium shall continue use its reasonable efforts to allow for such access or disclosure in force until a manner that does not result in such loss, violation or impairment, including by seeking a waiver from the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsrelevant third party. Notwithstanding anything contained in this Agreement to the foregoingcontrary, the Company Titanium shall not be required to provide any information which it reasonably believes it may not provide access or make any disclosure to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation other pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except 6.02 to the extent relating such access or information is reasonably pertinent to such U.S. "tax treatment" a litigation where Titanium or "tax structure," any non-public commercial of its Affiliates, on the one hand, and Silver or financial information) that any of its Affiliates, on the other hand, are adverse parties or reasonably likely to become adverse parties. Titanium may reasonably designate any competitively sensitive material to be provided to such parties relating Silver under this Section 6.02 as “Outside Counsel Only Material.” Such materials and information contained therein shall be given only to such U.S. "tax treatment" the outside legal counsel of Silver and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may will not be made until the earlier disclosed by such outside legal counsel to employees (including in-house legal counsel), officers, directors or other independent contractors (including accountants and expert witnesses) of (x) the date of public announcement of discussions relating Silver unless express permission is obtained in advance from Titanium or its legal counsel. All information exchanged pursuant to this Section 6.02 shall be subject to the transactions contemplated by this Mutual Non-Disclosure Agreement, dated as of November 8, 2019, between Titanium and Silver (y) the date of the public announcement of the transactions contemplated by this “Confidentiality Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose”).
Appears in 2 contracts
Samples: Joint Venture Operating Agreement (Taubman Centers Inc), Joint Venture Operating Agreement (Simon Property Group L P /De/)
Access to Information; Confidentiality. Subject (a) Except as otherwise prohibited by applicable Law or the terms of any Contract entered into prior to applicable lawthe date hereof or would be reasonably expected to violate any attorney-client privilege, from the date of this Agreement until the Effective Time, the Company shall (and its shall cause the Subsidiaries shall afford to), at Parent's expense: (i) provide to ParentParent and to the officers, Merger Sub and their financing sources and their respective directors, employees, accountants, consultants, legal counsel, financial advisors financing sources, agents and other representatives (the collectively, "Parent Representatives") of Parent reasonable access access, during normal business hours and upon reasonable prior notice throughout the period prior by Parent, to the Effective Time to their respective officers, employees, agents, properties, books, contracts, commitments offices and other facilities of the Company and the Subsidiaries and to the books and records andthereof, during such period, shall and (ii) furnish promptly to Parent such information concerning its businessesthe business, properties properties, Contracts, assets, liabilities, personnel and personnel other aspects of the Company and the Subsidiaries as Parent or Merger Sub shall its Representatives may reasonably request; . Without limiting the foregoing, Parent and its Representatives (including its financing sources) shall have the right to conduct appraisal and environmental and engineering inspections of each of the Company's properties, provided, however, such investigation shall not unreasonably disrupt (A) that unless reasonably required by the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source sources in connection with the transactions contemplated hereby Debt Financing, neither Parent nor its Representatives shall have the right to take and analyze any samples of any environmental media (including soil, groundwater, surface water, air or sediment) or any building material or to perform any invasive testing procedure on any building; and that any such taking and analyzing of samples or any such performance of invasive testing conducted pursuant to this Section 6.02 shall be "Confidential Information" for purposes reasonably acceptable to the Company, implemented in a manner that does not disrupt the operations of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential of the Subsidiaries, and paid for by reason of contractParent at Parent's sole cost and expense; and that Parent, agreement at Parent's sole cost and expense, shall return any site at which or understanding with third parties; provided that, with respect to any such information, the Company shallfrom which, or shall cause the relevant Subsidiary tothat has otherwise been affected by, provide the maximum amount any taking and analyzing of that information (samples or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance performance of that privilege or the terms of the relevant contract, as applicable. No investigation invasive testing conducted pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty 6.02, in this Agreement of any party hereto or any condition all material respects, to the obligations of the parties hereto. Notwithstanding anything herein condition existing at such site prior to the contrarytaking and analyzing of samples or performance of invasive testing, any party to this Agreement and (B) Parent and each employeeMerger Sub shall, representativeon a joint and several basis, or other agent of such parties) may disclose to indemnify and hold harmless the Company, the Subsidiaries and their respective Representatives for and against any and all personsliabilities, without limitation losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them arising out of any kind, the U.S. "tax treatment" personal injury or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of physical damage resulting from any kind (including opinions appraisal or other tax analysis, but without disclosure of identifying information orinspection conducted pursuant to this Section 6.02, except that, Parent and Merger Sub shall have no obligation to so indemnify or hold harmless to the extent relating to any such U.S. "tax treatment" liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within penalties result from the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date negligence of the public announcement of Company, the transactions contemplated by this AgreementSubsidiaries, or (z) the date one of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposetheir Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Huizenga H Wayne), Agreement and Plan of Merger (Boca Resorts Inc)
Access to Information; Confidentiality. Subject to applicable law, the The Company and its Subsidiaries shall afford to Parentthe officers, Merger Sub and their financing sources and their respective employees, accountants, counsel, financial advisors potential lenders and other representatives (the "of Parent Representatives") full access, at all reasonable access times during normal business hours upon reasonable notice throughout the period prior to the Effective Time Time, to their respective all properties, books, contracts, commitments Contracts and records of the Company and, during such period, the Company shall furnish promptly such to Parent all information concerning its businessesthe Company's business, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, howeverand the Company shall make available to Parent the appropriate individuals (including attorneys, such investigation shall not unreasonably disrupt accountants and other professionals) for discussions of the Company's operationsbusiness, properties and personnel as Parent may reasonably request. All nonpublic Without limiting the foregoing, the Company shall provide Parent and Merger Subsidiary with access to its books and records so as to enable Parent and Merger Subsidiary to ascertain whether the Company has complied with all covenants herein. Parent acknowledges that certain of the information provided towhich may be made available to it is proprietary and includes confidential information. Prior to the Effective Time and/or seven years after any termination of this Agreement, Parent will hold and will use its commercially reasonable efforts to cause its officers, directors, employees, accountants, counsel, consultants, advisors and agents (collectively, "Representatives") to hold, in confidence, unless compelled to disclose by judicial or obtained byadministrative process or by other requirements of Law, Parent, Merger Sub or any such financing source all confidential documents and information concerning the Company ("Evaluation Material") furnished in connection with the transactions contemplated hereby shall be "Confidential Information" by this Agreement. In the event that Parent or any of its Representatives becomes legally compelled (by deposition, interrogatory, request for purposes documents, subpoena, civil investigative demand or similar process) to disclose any of the Confidentiality Agreement dated February 19Evaluation Material, 2003 between Parent and shall provide the Company (with prompt prior written notice of such requirement so that the "Confidentiality Agreement"), Company may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Company waives compliance with the provisions hereof, Parent shall furnish only that portion of the Evaluation Material which shall continue in force until Parent is advised by written opinion of counsel is legally required and exercise best efforts to obtain assurance that confidential treatment will be accorded such Evaluation Material. The term "Evaluation Material" does not include any information that (i) at the Effective Time; time of disclosure or thereafter is generally available to the public (other than as a result of its disclosure directly or indirectly by Parent or its Representatives), (ii) was available to Parent on a non-confidential basis from a source other than the Company or its advisors, provided that Parentsuch source is not and was not bound by a confidentiality agreement regarding the Company, Merger Sub and or (iii) has been independently acquired or developed by Parent without violating any of its obligations under this Section 7.4. At any time upon written request by the Company, Parent shall promptly return to the Company may disclose such information as may be necessary all copies of the Evaluation Material in connection with seeking its possession or in the possession of its Representatives, and Parent Required Statutory Approvals and the Company Required Statutory Approvalswill promptly destroy all copies of any analyses, compilations, studies or other documents prepared by or for Parent or its Representatives or for Parent's or their use which reflect or contain any Evaluation Material. Notwithstanding the foregoing, the Company shall not be required to provide any information which may deny access or disclosure where it reasonably believes it may not provide to Parent determines upon advice of counsel that disclosure could result in the violation by reason the Company of applicable state or federal law, rules or regulations, which constitutes information protected by attorney/client privilege, or which provided that the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, informs Parent at the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, time that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having a determination has been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposemade.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Gtech Holdings Corp), Agreement and Plan of Merger (Interlott Technologies Inc)
Access to Information; Confidentiality. Subject to applicable lawThe Company shall, the Company and shall cause its Subsidiaries shall afford to Parentofficers, Merger Sub and their financing sources and their respective employees, accountants, counsel, consultants, financial advisors and other representatives (the "Parent Representatives to, afford to Parent, and to Parent’s officers, employees, accountants, counsel, consultants, financial advisors and other Representatives") , reasonable access during normal business hours upon reasonable notice throughout during the period prior to the earlier of the Effective Time and the termination of this Agreement to their respective all of its and its Subsidiaries’ properties, books, contracts, commitments books and records and to those employees and Representatives of the Company to whom Parent requests access, and, during such period, the Company shall furnish to Parent, as promptly such as reasonably practicable, all financial, operating and other data and information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall through its officers, employees, accountants, counsel, consultants, financial advisors and other Representatives may reasonably request; providedrequest (it being agreed, however, such investigation that the foregoing shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub permit Parent or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"Representatives to conduct any Phase I or Phase II environmental assessment), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, neither the Company nor any of its Subsidiaries shall not be required to provide access to or disclose information where the Company reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of the Company or any information which it reasonably believes it may not provide of its Subsidiaries or conflict with or violate any Law (including antitrust Laws) or any Contract to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contract, agreement or understanding with third parties; a party (provided that, with respect to any such information, that the Company shallshall in such event use reasonable best efforts to avoid such constraints on disclosure, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information including entering into a joint defense agreement in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicablecustomary form). No investigation or access permitted, or knowledge obtained, pursuant to this Section 5.04(a) 7.02 shall affect or be deemed to modify any representation representation, warranty, covenant or warranty agreement made by the Company hereunder or otherwise prejudice in this Agreement any way the rights and remedies of Parent or Sub hereunder, nor shall any party hereto such investigation, access or any condition knowledge be deemed to affect or modify Parent’s or Sub’s reliance on the obligations of representations, warranties, covenants and agreements made by the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (Company in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. MoreoverExcept for disclosures expressly permitted by the Confidentiality Agreement, notwithstanding anything herein Parent shall, in accordance with the Confidentiality Agreement, keep confidential and not disclose, and shall cause its officers, employees, accountants, counsel, consultants, financial advisors and other Representatives to keep confidential and not disclose, all Evaluation Material (as defined in the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether Confidentiality Agreement) directly or not independent indirectly received from the parties, regarding the U.S. "tax treatment" Company or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeits Representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Popeyes Louisiana Kitchen, Inc.), Agreement and Plan of Merger (Restaurant Brands International Inc.)
Access to Information; Confidentiality. Subject to the agreement, dated as of February 28, 2014 between Xxxxx and Blue (the “Confidentiality Agreement”), and subject to applicable law, the Company upon reasonable notice, each of Navy, Red Lion and Xxxxx shall, and shall cause its respective Subsidiaries shall to, afford to Parent, Merger Sub and their financing sources each other and their respective officers, directors, employees, accountants, counsel, financial advisors advisors, accountants and other agents and representatives (the "Parent collectively, “Representatives") ”), reasonable access during normal business hours and upon reasonable prior notice throughout during the period prior to the Effective Time to their all its respective properties, books, contracts, commitments commitments, personnel and records and, during such period, each of Red Lion and Xxxxx shall, and shall cause each of its respective Subsidiaries to, furnish promptly such to the other (a) a copy of each material report, schedule, registration statement and other document filed by it with any Governmental Entity and (b) all other information concerning its businessesbusiness, properties and personnel as Parent Navy or Merger Sub shall Xxxxx may reasonably request; provided. No review pursuant to this Section 6.2 shall affect any representation or warranty made by any party in this Agreement or any certificate delivered pursuant hereto. Each party will hold, howeverand will cause its respective Representatives and affiliates to hold, such investigation shall not unreasonably disrupt the Company's operations. All any nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection accordance with the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement dated February 19Agreement. Any such investigation pursuant to this Section 6.2 shall be conducted in such a manner as not to interfere unreasonably with the business or operations of Navy, 2003 between Parent and Red Lion or Xxxxx, as the Company (case may be. No party nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would violate or prejudice the "Confidentiality Agreement")rights of its customers, jeopardize the terms attorney-client privilege of which shall continue the institution in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose possession or control of such information as may be necessary in connection with seeking or contravene any law, rule, regulation, order, judgment, decree or binding agreement entered into prior to the Parent Required Statutory Approvals and the Company Required Statutory Approvalsdate hereof. Notwithstanding the foregoing, the Company no party shall not be required to provide any information which it reasonably believes it may not provide disclose personnel records relating to Parent by reason of applicable lawindividual performance or evaluation records, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representativemedical histories, or other agent information the disclosure of such parties) may disclose to any and all persons, without limitation of any kindwhich would violate applicable law. To the extent practicable, the U.S. "tax treatment" or "tax structure" (parties will make appropriate substitute disclosure arrangements under circumstances in each case, within which the meaning of Treasury Regulation section 1.6011-4) restrictions of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposepreceding sentence apply.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Nabors Industries LTD), Separation Agreement (C&J Energy Services, Inc.)
Access to Information; Confidentiality. Subject (a) Prior to applicable lawthe Closing Date, the Company shall, and shall cause each of its Subsidiaries to, afford to Parent and to Parent’s Representatives reasonable access upon reasonable advance notice and during normal business hours to all their respective properties, assets, books, records, Contracts, Permits, documents, information, directors, officers and employees, but only to the extent that such access does not unreasonably interfere with the business or operations of the Company and its Subsidiaries, and the Company shall, and shall cause each of its Subsidiaries to, furnish to Parent any information concerning its business, assets, liabilities, employees and other aspects of the Company and its Subsidiaries shall afford to Parentas Parent may reasonably request, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives including information concerning the Company’s compliance with its obligations under clause (the "Parent Representatives"A) reasonable access during normal business hours upon reasonable notice throughout the period prior of Section 6.1(a) related to the Effective Time to their respective propertiesdevelopment of subcutaneous and low-volume intravenous formulations of Cinryze (and the Company shall keep Parent reasonably informed on a reasonably current basis, booksand consider in good faith Parent’s views, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably requestwith respect thereto); provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide (or to cause any of its Subsidiaries to) afford such access or furnish such information which it reasonably believes it may to the extent that doing so is restricted under applicable Law or otherwise would result in the loss of attorney-client privilege (provided, that the Company shall use its reasonable efforts to allow for such access or disclosure in a manner that does not provide to Parent by reason result in a loss of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege, ) or is restricted pursuant to any confidentiality agreement or similar agreement or arrangement to which the Company or any Company Subsidiary is required a party (which such person shall use commercially reasonable efforts to keep confidential by reason of contractcause such counterparty thereto to waive) and provided, agreement or understanding with third parties; provided thatfurther, with respect to that any such information, access or disclosure shall be conducted at Parent’s expense during normal business hours and shall be subject to supervision by the Company shall, Company’s or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretoSubsidiary’s personnel. Notwithstanding anything herein to the contrarycontrary herein, (i) Parent and Merger Sub shall not be permitted prior to the Closing Date to contact any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions Company’s or other tax analysisits Subsidiaries’ vendors, but without disclosure of identifying information customers, suppliers, contract counterparties, joint venture partners or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions other than as expressly contemplated by this Agreement, (y) Governmental Entities regarding the date operations of the public announcement Company or its Subsidiaries without receiving the prior written consent of the transactions contemplated by this AgreementCompany, or which will not be unreasonably withheld and (zii) the date of execution of this Agreement. Moreover, notwithstanding anything herein prior to the contraryClosing Date, there Parent and Merger Sub shall be no limitation on not have the right to conduct any party's ability to consult environmental testing, sampling or analysis at, on, under or from any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" real property of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeCompany or its Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Viropharma Inc), Agreement and Plan of Merger (Shire PLC)
Access to Information; Confidentiality. Subject (a) The Company shall, and shall cause its Subsidiaries to, (i) provide to applicable lawParent and its Representatives access at reasonable times upon prior notice to the officers, employees, properties, books and records of the Company and its Subsidiaries, and (ii) furnish promptly such information concerning the Company and its Subsidiaries as Parent or its Representatives may reasonably request. Parent shall, and shall afford cause its Subsidiaries to, (i) provide to Parentthe Company and its Representatives access at reasonable times upon prior notice to the officers, Merger Sub employees, properties, books and their financing sources records of the Parent Entities and their respective accountantsSubsidiaries, counsel, financial advisors and other representatives (the "Parent Representatives"ii) reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning the Parent Entities and their respective Subsidiaries as the Company or its businesses, properties and personnel as Parent or Merger Sub shall Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, neither Parent nor the Company shall not be required to provide such access if it reasonably determines that it would (A) materially disrupt or impair the business or operations of Parent or the Company, as applicable, or any of its respective Subsidiaries, (B) cause a violation of any Company Material Contract or Parent Material Contract, (C) constitute a violation of any applicable Law or (D) cause a material risk of disclosure of any information which it reasonably believes it may not provide that in the reasonable judgment of Parent or the Company, as applicable, would result in the disclosure of any trade secrets of third parties. Nothing herein shall require the Company or Parent or any of their respective Subsidiaries to Parent by reason disclose information to the extent such information would result in a waiver of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege, work product doctrine or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that similar privilege or the terms violate any confidentiality obligation of such party existing as of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement date of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such party shall use reasonable best efforts to permit such disclosure may not to be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with the protection of such purpose.privilege or to obtain any consent required to permit such disclosure to be made without violation of such confidentiality obligations, as applicable). Notwithstanding the foregoing, no Company Response Action or Parent Response Action shall be deemed to violate or breach this Section 5.3 in any way or serve as a basis for Parent or the Company or any of their respective Affiliates to terminate this Agreement or assert that any condition in Article VI shall not have been satisfied. 55
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ikonics Corp), Agreement and Plan of Merger (Ikonics Corp)
Access to Information; Confidentiality. Subject to applicable lawLaw, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement pursuant to Section 7.01, upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and(other than any of the foregoing that relate to the negotiation and execution of this Agreement, during such periodor, subject to Section 5.02, to any Takeover Proposal or any other transactions potentially competing with or alternative to the Transactions or proposals from other parties relating to any competing or alternative transactions) and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; providedprovided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it if the Company determines, in its reasonable judgment, that doing so is reasonably believes it may not provide likely to Parent by reason (i) violate applicable Law or an applicable Judgment, (ii) jeopardize the protection of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, attorney work product protection or which other legal privilege or (iii) expose the Company to risk of liability for disclosure of sensitive or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to personal information. In any such informationevent, the Company shallshall use its reasonable efforts to communicate, or shall cause to the relevant Subsidiary toextent feasible, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with would not violate the applicable lawLaw, rule Contract or regulation, the maintenance obligation or risk waiver of that such privilege or protection or risk such liability, including entering into a joint defense agreement, common interest agreement or other similar arrangement. All requests for information made pursuant to this Section 5.05 shall be directed to the executive officer or other Person designated by the Company. Until the Effective Time, all information provided will be subject to the terms of the relevant contractletter agreement dated as of January 5, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to 2016 by and among the obligations of Company and Parent (the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Abbott Laboratories), Agreement and Plan of Merger (Alere Inc.)
Access to Information; Confidentiality. Subject (a) Solely for the purposes of furthering the Mergers or for integration planning related thereto, and subject to contractual and legal restrictions applicable lawto the Company or any of its Subsidiaries, the Company shall, and shall cause its Subsidiaries shall to, afford to Parent and to the Representatives of Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time or the termination of this Agreement to their respective all of the Company’s properties, books, contractsContracts, commitments personnel and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably requestrecords; provided, however, that such investigation shall access does not unreasonably disrupt the Company's operationsnormal operations of the Acquired Companies. All nonpublic information provided toThis Section 5.5(a) shall not require any Acquired Company or allow Parent to perform invasive testing or evaluation (including any Phase II environmental testing) or permit any access, or obtained byto disclose any information, Parent, Merger Sub or any such financing source that in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes reasonable judgment of the Confidentiality Agreement dated February 19Company would reasonably be expected to result in (i) the disclosure of any trade secrets of third parties or a violation of any of such Acquired Company’s obligations with respect to confidentiality if such Acquired Company shall have used its reasonable best efforts to obtain the consent of such third party to such inspection or disclosure, 2003 between Parent and (ii) the Company (the "Confidentiality Agreement"), the terms loss of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose attorney-client or other legal privilege with respect to such information as may be necessary or (iii) the disclosure of competitively sensitive information in connection with seeking the Parent Required Statutory Approvals and case of documents or portions of documents relating to pricing or other matters that are highly sensitive (including any Government Contract or Government Contract Bid). If any material is withheld by such Acquired Company pursuant to the Company Required Statutory Approvals. Notwithstanding the foregoingpreceding sentence, the Company shall not be required inform Parent as to provide any the general nature of what is being withheld. All information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation exchanged pursuant to this Section 5.04(a5.5(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (Mutual Confidentiality and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011Non-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Disclosure Agreement, dated May 1, 2020, between the Company and Parent (y) the date “Confidentiality Agreement”), as supplemented by that certain Clean Team Addendum to NDA, dated as of July 29, 2021 (the public announcement of the transactions contemplated “Clean Team Agreement”), by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposebetween Parent and Company.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Desktop Metal, Inc.), Agreement and Plan of Merger (ExOne Co)
Access to Information; Confidentiality. Subject The Company shall, and shall cause each of the wholly-owned Company Subsidiaries and, to the fullest extent permitted by applicable lawlaw (including common law relating to fiduciary duties or otherwise), each of the Company and its Subsidiaries shall to afford to Parent, Merger Sub and their financing sources and their respective to Parent’s officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") representatives, upon reasonable prior notice, reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time to all their respective properties, books, contracts, commitments commitments, personnel and records (provided such access is in a manner that is not unduly disruptive to the Company’s operations or business) and, during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt that the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent Company and the Company Subsidiaries may withhold (the "Confidentiality Agreement"), i) any document or information that is subject to the terms of which a confidentiality agreement with a third party or (ii) such portions of documents or information relating to pricing or other matters that are highly sensitive if the exchange of such documents (or portions thereof) or information, as determined by such party’s counsel, might reasonably result in antitrust difficulties for such party (or any of its affiliates). If any material is withheld by any party pursuant to the proviso to the preceding sentence, such party shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking inform the Parent Required Statutory Approvals and as to the Company Required Statutory Approvalsgeneral nature of what is being withheld. Notwithstanding Without limiting the generality of the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not shall, within two (2) business days of request therefor, provide to Parent by reason of applicable law, rules or regulations, which constitutes the information protected by attorney/client privilege, or which described in Rule 14a-7(a)(2)(ii) under the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that Exchange Act. All information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation exchanged pursuant to this Section 5.04(a) 6.01 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations of confidentiality agreement dated June 22, 2005 between the parties hereto. Notwithstanding anything herein to Company and Parent (the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Cruzan International, Inc.), Agreement and Plan of Merger (Absolut Spirits CO INC)
Access to Information; Confidentiality. Subject to applicable law(a) Between the date of this Agreement and the Closing, the Company shall use commercially reasonable efforts to afford the Buyer and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial professional advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours and upon reasonable prior notice throughout to all of the period prior properties, personnel, contracts and agreements, books and records of the Company and its Subsidiaries and shall promptly deliver or make available to the Effective Time to their respective Buyer information concerning the business, properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties assets and personnel of the Company and the Subsidiaries as Parent or Merger Sub shall the Buyer may from time to time reasonably request; provided, however, that such investigation access or request shall not unreasonably disrupt interfere with any of the Company's operations. All nonpublic information provided to, businesses or obtained by, Parent, Merger Sub operations of the Company or any of its Subsidiaries; provided, further, that the auditors and accountants of the Company and its Subsidiaries shall not be obligated to make any work papers available to any Person unless and until such financing source Person has executed a customary agreement related to such access to work papers in connection form and substance reasonably satisfactory to such auditors or accountants. The Buyer shall hold, and shall cause its professional advisors to hold, all Evaluation Material (as defined in the Confidentiality Agreement, between Triarc Companies, Inc. and the Buyer dated February 14, 2007 (the “Confidentiality Agreement”) or the Confidentiality Agreement, between Triarc Companies, Inc. and Bear, Xxxxxxx & Co. Inc., dated February 16, 2007 (the “Bear Xxxxxxx Confidentiality Agreement”), as applicable) in confidence in accordance with the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement dated February 19, 2003 between Parent and or the Company (the "Bear Xxxxxxx Confidentiality Agreement"), as applicable, and, in the event of the termination of this Agreement for any reason, the terms of which Buyer promptly shall continue return all Evaluation Material in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection accordance with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Confidentiality Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Note Purchase Agreement (Deerfield Triarc Capital Corp), Agreement and Plan of Merger (Triarc Companies Inc)
Access to Information; Confidentiality. Subject to applicable lawApplicable Law and as further set forth on Section 6.02 of the Company Disclosure Letter, the Company shall, and shall cause each of its Subsidiaries shall to, afford to the Parent and the Parent’s Representatives reasonable access, Merger Sub upon reasonable advance notice and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout hours, during the period prior to the Effective Time Time, to all their respective properties, assets, books, contracts, commitments commitments, plans, Tax records and Tax Returns, work papers, personnel, Representatives and records and, during such period, the Company shall, and shall cause its Subsidiaries to, furnish promptly to the Parent (a) to the extent not publicly available, a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws or commission actions and (b) all other information concerning its businessesbusiness, properties and personnel as may be reasonably requested, including all information regarding the Life Sciences SAPA (including, without limitation, with respect to the Restructuring Transactions or the Transition Services Agreement) and all information necessary to enable Parent or Merger Sub shall reasonably requestto prepare the financial statements and related disclosures required to be included in Parent’s Current Report on Form 8-K following the Closing (in each case, in a manner so as to not interfere in any material respect with the normal business operations of the Company its Subsidiaries); provided, however, such investigation that the Company shall not unreasonably disrupt be required to permit such access or make such disclosure, to the Company's operations. All nonpublic information provided to, extent that such disclosure or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall access would reasonably be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company likely to (the "Confidentiality Agreement"), i) violate the terms of which shall continue in force until the Effective Time; any confidentiality agreement or other Contract with a third-party (provided that Parent, Merger Sub and the Company may disclose shall use its commercially reasonable efforts to obtain the consent of any such information as may be necessary agreement’s counterparty to such inspection or disclosure), (ii) result in connection with seeking the Parent Required Statutory Approvals and loss of any attorney-client privilege (provided that the Company Required Statutory Approvalswill provide Parent with appropriate information regarding the factual basis underlying any circumstances that resulted in the preparation of such privileged analysis), or (iii) violate any Applicable Law. Notwithstanding anything contained in this Agreement to the foregoingcontrary, the Company shall not be required to provide any information which it reasonably believes it may not provide access or make any disclosure to Parent by reason of applicable law, rules pursuant to this Section 6.02 to the extent such access or regulations, which constitutes information protected by attorney/client privilege, or which is reasonably pertinent to a litigation where the Company or any Subsidiary is required of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties. All information exchanged pursuant to keep confidential by reason this Section 6.02 shall be subject to the confidentiality agreement, dated as of contractSeptember 24, agreement or understanding with third parties; provided that2013, with respect between Parent and the Company (the “Confidentiality Agreement”). Subject to any such informationthe limitations and restrictions set forth in, and without expanding the obligations of the Parties under, this Section 6.02, the Company shall, or and shall cause the relevant Subsidiary its Subsidiaries to, provide reasonably cooperate with Parent and its Subsidiaries to facilitate the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms planning of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations integration of the parties hereto. Notwithstanding anything herein to and their respective businesses after the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeClosing Date.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Atmi Inc), Agreement and Plan of Merger (Entegris Inc)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information (including, but not limited to, any Antitrust Law), each of the Company and Parent shall, and shall cause each of its Subsidiaries shall to, afford to Parentthe other party and its representatives reasonable access during normal business hours to all of its and its Subsidiaries’ properties, Merger Sub commitments, books, Contracts, records and their financing sources and their respective correspondence (in each case, whether in physical or electronic form), officers, employees, accountants, counsel, financial advisors and other representatives (Representatives and each of the "Company and Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such to the other (i) a copy of each report, schedule and other document filed or submitted by it pursuant to the requirements of Federal or state securities Laws (other than any public filing with the SEC made via the SEC’s Xxxxx filing system) and a copy of any communication (including “comment letters”) received by the Company or Parent, as the case may be, from the SEC concerning compliance with securities Laws and (ii) all other information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall the Company, as the case may be, may reasonably request; provided, however, such investigation shall not unreasonably disrupt . Except for disclosures permitted by the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement Agreement, dated February 19as of May 23, 2003 2008, between Parent and the Company (as it may be amended from time to time, the "“Confidentiality Agreement"”), Parent and the Company and each of their Representatives shall hold information received from the other pursuant to this Section 5.7 in confidence in accordance with the terms of which shall continue in force until the Effective Time; provided that Confidentiality Agreement. No investigation, or information received, pursuant to this Section 5.7 will modify any of the representations and warranties of the Company or Parent. Neither Company nor Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoingnor any of their Subsidiaries, the Company shall not be required to provide access to or to disclose information where such access or disclosure would, based on the advice of counsel, cause the attorney-client privilege of such party or its Subsidiaries to be inapplicable or violate, in any information which it reasonably believes it may not provide to Parent by reason of applicable material respect, any law, rules or regulationsrule, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege order, judgment, decree or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition binding agreement entered into prior to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to The parties shall make appropriate substitute disclosure arrangements under circumstances in which the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" restrictions of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposepreceding sentence apply.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Willis Group Holdings LTD), Agreement and Plan of Merger (Hilb Rogal & Hobbs Co)
Access to Information; Confidentiality. Subject to (a) To the extent permitted by applicable lawLaw, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective to Parent’s officers, employees, accountants, counsel, financial advisors advisors, financing sources (and their advisors) and other representatives (the "Parent Representatives") , reasonable access during normal business hours and upon reasonable prior notice throughout to the Company during the period prior to the Effective Time to their respective all its and its Subsidiaries’ properties, books, contractsContracts, commitments commitments, personnel and records records, and, during such period, the Company shall furnish promptly to Parent (i) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities Laws and (ii) all other information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, provided that such investigation access and inspections shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes operations of the Confidentiality Agreement dated February 19Company or its Subsidiaries; and provided further, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide (or to cause any of its Subsidiaries to) so confer, afford such access or furnish such copies or other information which it reasonably believes it may not provide to Parent by reason the extent that doing so would result in a violation of applicable law, rules result in the loss of attorney-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or regulations, which constitutes information protected by disclosure in a manner that does not result in a loss of attorney/-client privilege, including through the use of joint defense agreements) or which the Company or any Subsidiary is required are subject to keep confidential by reason of contract, agreement or understanding with confidentiality obligations owing to third parties; provided that. Without limiting the foregoing, with respect to any such informationbetween the date hereof and the Effective Time, the Company shall, or shall (and shall cause its Affiliates to) reasonably cooperate with Parent in connection with Parent securing financing to consummate the relevant Subsidiary toMerger (including debt and/or equity financing), provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent including, without limitation, cooperating with the applicable lawParent in obtaining appraisals of the assets of the Company and its Subsidiaries, rule or regulationsending notices to reflect the change of control, obtaining reasonable access to the Company’s accountants and their work papers, making employees of the Company and its Subsidiaries reasonably available, providing all financial information relating to the Company and its Subsidiaries as may be reasonably requested by Parent, and permitting Parent and its accountants reasonable access to the Company and its Subsidiaries. In addition, the maintenance Company shall deliver estimated and reasonably detailed final monthly financial results and statements to Parent as promptly as practicable following each of that privilege or their preparation at the terms end of the relevant contract, as applicableeach fiscal month. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty Nothing contained in this Agreement of any party hereto shall give to Parent or any condition its Subsidiaries, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations prior to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, Effective Time in any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeunlawful manner.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Advo Inc), Agreement and Plan of Merger (Valassis Communications Inc)
Access to Information; Confidentiality. Subject Each of the Company, Parent, Sub and their respective officers, employees, accountants, counsel, consultants, financial advisors and other Representatives and sources of Debt Financing and Equity Financing, shall afford to applicable laweach other reasonable access during normal business hours during the period prior to the earlier of the Effective Time and the termination of this Agreement to all of its and its Subsidiaries' properties, books and records and to those employees of the Company or Parent or their respective Subsidiaries, as applicable, to whom such persons reasonably request access, and, during such period, each of the Company and Parent shall furnish, as promptly as practicable to such persons all information concerning its and its Subsidiaries' business, properties and personnel as such persons may reasonably request. Notwithstanding the foregoing, neither the Company nor Parent nor any of their respective Subsidiaries shall be required to provide access to or disclose information if the Company or Parent, as applicable, reasonably determines that such access or disclosure would jeopardize the attorney-client privilege of the Company, Parent or any of their respective Subsidiaries, as applicable, or contravene any Law to which the Company, Parent or any of their respective Subsidiaries, as applicable, is a party; provided that, in any such case, the Company and its Subsidiaries shall afford to or Parent, Merger Sub as applicable, shall provide such information in redacted form as necessary to preserve such privilege or comply with such Law or otherwise make appropriate substitute disclosure arrangements, to the extent possible. Except for disclosures expressly permitted by the terms of the confidentiality letter agreement dated as of April 4, 2013, between Parent and their financing sources the Company (as such agreement may be amended from time to time, the “Confidentiality Agreement”), each of the Company and Parent shall hold, and shall cause their respective officers, employees, accountants, counsel, financial advisors and other representatives (Representatives to hold, all information received from the "Parent other party or its Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, booksdirectly or indirectly, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection confidence in accordance with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No information or knowledge obtained by any person in any investigation pursuant to this Section 5.04(a) 5.02 shall affect or be deemed to modify any representation or warranty in this Agreement of made by any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fidelity National Financial, Inc.), Agreement and Plan of Merger (Fidelity National Financial, Inc.)
Access to Information; Confidentiality. Subject to applicable law(a) From the date hereof until the earlier of the Effective Time and the termination of this Agreement, the Company shall, and shall use its Subsidiaries shall afford reasonable best efforts to Parentcause the officers, Merger Sub and their financing sources and their respective accountantsdirectors, counselemployees, auditors, attorneys, consultants, financial advisors advisors, lenders and other representatives (collectively, the "Parent Representatives") of the Company and the Company Subsidiaries to, afford the Representatives of Parent and Merger Sub, upon reasonable advance notice, reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective officers, employees, agents, premises, properties, offices and other facilities, books, contractsrecords, commitments contracts and records anddocuments of the Company and the Company Subsidiaries, during such period, and shall furnish promptly such Parent and Merger Sub with all financial, tax, operating and other data and information concerning its businesses, properties and personnel as Parent or Merger Sub, through its Representatives, may reasonably request. Parent and Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt use reasonable best efforts to minimize any disruption to the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes business of the Confidentiality Agreement dated February 19, 2003 between Parent Company and the Company Subsidiaries that may result from the requests for access, data and other information hereunder. The Company shall use reasonable best efforts to furnish to Parent quarterly financial and operating data and information in substantially the form attached hereto as Exhibit C within forty-five days following the end of each calendar quarter. In addition, the Company shall use reasonable best efforts to furnish to Parent within thirty days following the end of each calendar month a schedule in substantially the form attached hereto as Exhibit D identifying the aggregate estimated annualized revenue and earnings associated with (a) all new business secured during the preceding calendar month, (b) all business that has been lost or is not being renewed during the preceding calendar month and (c) all business that has been renewed on new or revised terms or conditions (including a comparison to the annualized revenue and earnings associated with the previous contract) (such changes in (a), (b) and (c), the "Company Changed Contracts"). Parent will remain subject to the terms of a confidentiality agreement with the Company dated May 7, 2003 (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required have no obligation to provide any such access or data and information which it reasonably believes it may not provide if the Company determines in good faith after consultation with outside legal counsel that providing such access or data and information would violate any legal or contractual restrictions, including restrictions under Antitrust Laws. Neither Parent nor any of its Representatives shall contact any person who, to Parent by reason the knowledge of applicable lawParent, rules is a client or regulations, which constitutes information protected by attorney/client privilege, or which customer of the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shallSubsidiaries without the Company's prior written consent, such consent not to be unreasonably withheld or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4)delayed; provided, that such disclosure may however, Parent and its Representatives shall not be made until restricted from contacting any potential clients or customers in the earlier ordinary course of (x) the date of public announcement of discussions relating business, including in connection with responding to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or requests for proposals."tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Caremark Rx Inc), Agreement and Plan of Merger (Advancepcs)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information, from the date of this Agreement until the Effective Time, or, if earlier, the termination of this Agreement in accordance with its terms, the Company will, and will cause its Subsidiaries and the Representatives of the Company and its Subsidiaries shall to, afford to ParentParent and Merger Sub, Merger Sub and their financing sources and their respective accountantsRepresentatives, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business working hours upon reasonable advance notice throughout the period prior to the Effective Time to their respective officers, employees, agents, assets, properties, booksoffices, contractsplants and other facilities, commitments books and records and, during such period, shall furnish promptly such information concerning of the Company or any of its businesses, properties and personnel as Parent or Merger Sub shall reasonably requestSubsidiaries; provided, however, such investigation shall not unreasonably disrupt that none of Parent or Merger Sub, or their respective Representatives, may access or enter onto any property, office, plant or other facility, or otherwise inquire about or investigate the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub ’s or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" of its Subsidiaries operations, for purposes of conducting any environmental site visit, assessment, investigation (including any testing, sampling or intrusive measures) without the Confidentiality Agreement dated February 19prior, 2003 between Parent and express written consent of the Company. Notwithstanding anything in this Section 6.05 to the contrary, the Company may withhold any document or information the disclosure of which (i) would cause a violation of applicable Law or (ii) would be reasonably likely to risk a loss of legal privilege (provided that the "Confidentiality Agreement"Company will use its reasonable best efforts to allow for such access or disclosure (or as much as possible) in a manner that would not be reasonably likely to risk a loss of legal privilege). If any material is withheld by the Company pursuant to the immediately preceding sentence, it will, to the extent possible without violating Law or risking a loss of legal privilege, inform Parent as to the general nature of what is being withheld. All information obtained by Parent or its Representatives pursuant to this Section 6.05 will be held confidential in accordance with the terms of which shall continue in force until the Effective Time; provided that ParentConfidentiality Agreement, Merger Sub and dated November 15, 2016 (the “Confidentiality Agreement”), between the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory ApprovalsParent. Notwithstanding the foregoingany provision in this Agreement, the Company Parent shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required of its Subsidiaries or their respective Representatives, before, on or after the Closing Date, any right to keep confidential by reason access or to review any Tax Return or Tax workpaper of contract, agreement Parent or understanding with third parties; provided that, with respect to any such information, of its Affiliates (other than of the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, its Subsidiaries for a Pre-Closing Tax Period or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4Straddle Period); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Granite Construction Inc), Agreement and Plan of Merger (Layne Christensen Co)
Access to Information; Confidentiality. Subject Except for competitively sensitive information as to which access, use and treatment is subject to applicable law, the Company and its Subsidiaries subsidiaries shall afford to Parent, Parent and Merger Sub and their financing sources and their respective accountants, counsel, financial advisors advisors, lenders, potential lenders and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operationsoperations and shall not be deemed to permit Parent or Merger Sub to conduct any on site environmental investigations or examinations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source Parent in connection with the transactions contemplated hereby shall be "Confidential InformationEvaluation Material" for purposes of the Confidentiality Agreement dated February 19August 17, 2003 2001 between Parent and the Company (the "Confidentiality AgreementCONFIDENTIALITY AGREEMENT"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals, the Company Required Statutory Approvals and the Company Required Statutory ApprovalsStockholder Approval. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect parties if the Company has used commercially reasonable efforts to any obtain the consent of such informationthird party to such inspection or disclosure. Except to the extent prohibited by applicable law, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor will consult with Parent from time to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition time prior to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (Effective Time regarding engineering and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions technical aspects relating to the transactions contemplated by this Agreement, (y) the date design and construction of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) its Astoria Repowering Project and shall be construed in a manner consistent with such purposeother material construction and development projects.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Orion Power Holdings Inc), Agreement and Plan of Merger (Reliant Resources Inc)
Access to Information; Confidentiality. Subject From the date of this Agreement until the Acceptance Time and subject to applicable lawApplicable Law, the Company shall, and shall cause its Subsidiaries shall afford to, upon reasonable notice and request, (i) give to Parent, Merger Sub and their financing sources and their respective accountants, its counsel, financial advisors advisors, auditors and other authorized representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout to its offices, properties, books and records, (ii) furnish to Parent, its counsel, financial advisors, auditors and other authorized representatives such financial and operating data and other information as such Persons may reasonably request and (iii) instruct its employees, counsel, financial advisors, auditors and other authorized representatives to cooperate with Parent in its investigation. Any investigation pursuant to this Section shall be conducted in such manner as not to interfere unreasonably with the period conduct of the business of the Company and its Subsidiaries. Nothing contained in this Section 7.4 shall, prior to the Effective Time Acceptance Time, require the Company to their respective propertiestake any action that would, booksin the good faith judgment of the Company, contracts, commitments and records and, during such period, shall furnish promptly such information concerning constitute a waiver of the attorney-client or similar privilege or trade secret protection held by the Company or any of its businesses, properties and personnel as Parent or Merger Sub shall reasonably requestSubsidiaries; provided, however, that the Company shall make a good faith effort to accommodate any request from Parent for access or information pursuant to this Section in a manner that does not result in such investigation shall not unreasonably disrupt the Company's operationsa waiver. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby furnished pursuant to this Section shall be "Confidential Information" for purposes subject to the Mutual Non-Disclosure Agreement, dated as of the Confidentiality Agreement dated February 19March 25, 2003 2009, between Parent and the Company (as amended, the "“Confidentiality Agreement"”), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No information or knowledge obtained by Parent in any investigation pursuant to this Section 5.04(a) 7.4 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to made by the obligations of the parties heretoCompany hereunder. Notwithstanding anything herein to the contrarycontrary herein, Parent shall not have the right to perform any party invasive testing on any Leased Real Property. Any access granted to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there Parent shall be no limitation on any party's ability subject to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeCompany’s reasonable security measures.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Catapult Communications Corp), Agreement and Plan of Merger (Ixia)
Access to Information; Confidentiality. Subject to applicable law, the The Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective to Parent’s officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") , reasonable access (including for the purpose of coordinating integration and transition planning activities with the employees of the Company and its Subsidiaries) during normal business hours and upon reasonable prior notice throughout to the Company during the period prior to the Effective Time or the termination of this Agreement to their respective all its and its Subsidiaries’ properties, books, contractsContracts, commitments personnel and records but only to the extent that such access is not prohibited by applicable Legal Provisions and does not unreasonably interfere with the business or operations of the Company and its Subsidiaries, and, during such period, the Company shall furnish promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed by it after the date of this Agreement pursuant to the requirements of Federal or state securities laws, other than any such report, schedule, registration statement or other document that is available in unredacted form on XXXXX, (b) a copy of each correspondence or written communication, other than immaterial correspondence and written communication, with any United States Federal or state Governmental Entity and (c) all other information concerning its businessesand its Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide (or to cause any of its Subsidiaries to) afford such access or furnish such copies or other information which it reasonably believes it may not provide to Parent by reason the extent that doing so would result in a violation of applicable law, rules Legal Provisions or regulations, which constitutes information protected by the loss of attorney/-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a violation of applicable Legal Provisions or loss of attorney-client privilege, or which the Company or any Subsidiary is required to keep confidential ). Except for disclosures expressly permitted by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractConfidentiality Agreement, as applicableParent shall hold, and shall cause its officers, employees, accountants, counsel, financial advisors and other Representatives to hold, all information received from the Company, directly or indirectly, in confidence in accordance with the Confidentiality Agreement and shall otherwise comply with the Confidentiality Agreement with respect to such information. No investigation pursuant to this Section 5.04(a) shall 6.02 or information provided or received by any party hereto pursuant to this Agreement will affect any of the representations or be deemed to modify any representation or warranty warranties of the parties hereto contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Mentor Corp /Mn/), Agreement and Plan of Merger (Johnson & Johnson)
Access to Information; Confidentiality. Subject to Except if prohibited by any applicable lawLaw, the Company and its Subsidiaries shall afford to Parent and to Parent’s Representatives, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout (under the supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the period prior to the earlier of the Effective Time or the termination of this Agreement to their respective its properties, booksbooks and records, contractsContracts and personnel, commitments and records and, during such period, the Company shall furnish furnish, as promptly as reasonably practicable, to Parent such information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall Parent’s Representatives may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or that any such financing source in connection with the transactions contemplated hereby access shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent afforded and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose any such information as may shall be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsfurnished at Parent’s expense. Notwithstanding the foregoingimmediately preceding sentence, the Company shall not be required to provide afford access or furnish information to the extent (i) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the Agreement Date, (ii) such information relates to the applicable portions of the minutes of the meetings of the Company Board or the Special Committee (including any presentations or other materials prepared by or for the Company Board or the Special Committee) where the Company Board or the Special Committee discussed (or is information which it reasonably believes it may not provide otherwise related to) (A) the Transactions or any similar transaction involving the sale of the Company, or a material portion of its assets, to, the license of a material portion of the Company’s assets to, or combination of the Company with, any other Person, (B) any Company Takeover Proposal or (C) any Intervening Event, or (iii) the Company determines in good faith after consulting with counsel that affording such access or furnishing such information would jeopardize the attorney-client privilege of the Company, violate applicable Law or result in antitrust risk for the Company; provided that the Company will use its reasonable efforts to Parent by reason obtain any required consents for the disclosure of applicable law, rules such information and take such other reasonable action (including entering into a joint defense agreement or regulations, which constitutes information protected by similar arrangement to avoid loss of attorney/-client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, ) with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor as is necessary to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that permit disclosure to Parent without jeopardizing such attorney-client privilege or the terms of the relevant contractviolating applicable Law, as applicable. No investigation All information exchanged pursuant to this Section 5.04(a) 7.01 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations of confidentiality letter agreement dated November 11, 2023 between the parties hereto. Notwithstanding anything herein to Company and Parent, as amended (the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (XOMA Corp), Agreement and Plan of Merger (Kinnate Biopharma Inc.)
Access to Information; Confidentiality. Subject Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford to applicable lawthe representatives, officers, directors, employees, agents, attorneys, accountants and financial advisors (“Representatives”) of Parent reasonable access (at Parent’s sole cost and expense), in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable written notice throughout the period commencing on the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to Article VIII, to the properties, books and records of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as Parent or Merger Sub shall may reasonably requestbe requested in writing, in each case, for any reasonable business purpose related to the consummation of the transactions contemplated by this Agreement; provided, however, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Acquisition Sub if such investigation shall not unreasonably disrupt disclosure would, in the reasonable judgment of the Company's operations. All nonpublic information provided to, (i) cause significant competitive harm to the Company or obtained by, Parent, Merger Sub or any such financing source in connection with its Subsidiaries if the transactions contemplated hereby shall be "Confidential Information" for purposes by this Agreement are not consummated, (ii) violate applicable Law or the provisions of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required any agreement to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shalla party, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (iii) jeopardize any attorney-client or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableother legal privilege. No investigation or access permitted pursuant to this Section 5.04(a) 6.4 shall affect or be deemed to modify any representation or warranty in made by the Company hereunder. Each of Parent and Acquisition Sub agrees that it will not, and will cause its Representatives not to, use any information obtained pursuant to this Agreement of Section 6.4 (or otherwise pursuant to this Agreement) for any party hereto competitive or any condition other purpose unrelated to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" consummation of the transactions contemplated by this Agreement. The intent Parent will use its reasonable best efforts to minimize any disruption to the respective business of the Company and its Subsidiaries that may result from requests for access under this provision Section 6.4 and, notwithstanding anything to the contrary herein, the Company may satisfy its obligations set forth above by electronic means if physical access is that not reasonably feasible or would not be permitted under applicable Law as a result of COVID-19 or any COVID-19 Measures. Prior to any disclosure, the transactions contemplated by the Agreement are not treated as having been offered under conditions of Company and Parent shall enter into a customary confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent agreement with such purposerespect to any information obtained pursuant to this Section 6.4 (or otherwise pursuant to this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Twitter, Inc.), Agreement and Plan of Merger
Access to Information; Confidentiality. Subject to the Confidentiality Agreement, and subject to applicable law, upon reasonable notice, each of Parent, AcquisitionCo and the Company shall, and shall cause its respective Subsidiaries shall to, afford to Parent, Merger Sub and their financing sources each other and their respective officers, directors, employees, accountants, counsel, financial advisors and other agents and representatives (the "Parent collectively, “Representatives") ”), reasonable access (during normal business hours hours, upon reasonable prior notice throughout and in accordance with procedures reasonably established by, and in a manner as shall not unreasonably interfere with the business or operations of, the Parent, AcquisitionCo, Company or any of their respective Subsidiaries, as applicable) during the period prior to the earlier of the Effective Time or the termination of this Agreement to their all its respective properties, books, contracts, commitments commitments, personnel and records and, during such period, each of Parent and the Company shall, and shall cause each of its respective Subsidiaries to, furnish promptly such to the other all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall the Company may reasonably request; provided. No review pursuant to this Section 5.1 shall affect any representation or warranty made by any Party or any certificate delivered pursuant hereto. Each Party will hold, howeverand will cause its respective Representatives and affiliates to hold, such investigation shall not unreasonably disrupt the Company's operations. All any nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection accordance with the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement dated February 19, 2003 between Parent and Agreement. Any such investigation pursuant to this Section 5.1 shall be conducted in such a manner as not to interfere unreasonably with the Company (the "Confidentiality Agreement"), the terms business or operations of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and AcquisitionCo or the Company Company, as the case may be. No Party shall conduct any core sampling or other invasive environmental testing without prior written approval of the other Party. No Party nor any of its Subsidiaries shall be required to provide access to or to disclose information where such access or disclosure would jeopardize the attorney-client privilege of the institution in possession or control of such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsor contravene any law, rule, regulation, order, judgment or decree. Notwithstanding the foregoing, the Company no Party shall not be required to provide any information which it reasonably believes it may not provide disclose personnel records relating to Parent by reason of applicable lawindividual performance or evaluation records, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representativemedical histories, or other agent information the disclosure of such parties) may disclose to any and all persons, without limitation of any kindwhich would violate applicable law. To the extent practicable, the U.S. "tax treatment" or "tax structure" (parties will make appropriate substitute disclosure arrangements under circumstances in each case, within which the meaning of Treasury Regulation section 1.6011-4) restrictions of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposepreceding sentence apply.
Appears in 2 contracts
Samples: Arrangement Agreement (Nabors Industries LTD), Arrangement Agreement (Tesco Corp)
Access to Information; Confidentiality. Subject (a) Upon reasonable notice and subject to applicable lawLaws relating to the exchange of information, the Company shall, and shall cause each of the Company Subsidiaries to, afford to the Acquirer and its Subsidiaries shall afford to ParentRepresentatives reasonable access, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time Closing, to their respective all the properties, books, contracts, commitments commitments, personnel and records of the Company and the Company Subsidiaries (including Tax Returns and work papers of the Company’s accountants), and to its Representatives, in each case to the extent within the control of the Company and in a manner not unreasonably disruptive to the operation of the business of the Company and the Company Subsidiaries, and, during such period, the Company shall, and shall furnish promptly cause the Company Subsidiaries to, make available to Acquirer (i) a copy of each material report, schedule, registration statement and other document filed or received by it during such period pursuant to the requirements of the federal securities laws or other applicable Laws (other than reports or documents which the Company is not permitted to disclose under applicable Law) and (ii) all other material information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall Acquirer may reasonably request; provided, however, such investigation shall not unreasonably disrupt request in writing. Neither the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or Company nor any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which Subsidiaries shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide access to Parent by reason or to disclose information, documents or other materials if (i) such access or disclosure would jeopardize the attorney-client privilege of applicable law, rules the person in possession or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason control of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause any Company Subsidiary or contravene any Law applicable to the relevant Subsidiary to, provide the maximum amount person in possession or control of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulationsuch information, the maintenance of that privilege Company or any Company Subsidiary or (ii) such access or disclosure would violate the terms of the relevant contract, a confidentiality agreement with a third party that is in effect as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to The parties hereto will make appropriate substitute disclosure arrangements under circumstances in which the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" restrictions of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposepreceding sentence apply.
Appears in 2 contracts
Samples: Credit Agreement (Santander Holdings USA, Inc.), Investment Agreement (Santander Holdings USA, Inc.)
Access to Information; Confidentiality. Subject to restrictions of applicable lawLaw (including antitrust Laws), the Company shall, and shall cause each of its Subsidiaries shall to, afford to Parent and to Parent, Merger Sub and their financing sources ’s Subsidiaries and their respective officers, employees, accountants, counsel, financial advisors advisors, financing sources and other representatives (collectively, the "Parent “Representatives") ”), upon reasonable notice, reasonable access during normal business hours upon reasonable notice throughout during the period prior from and after the date hereof to the Effective Time or any earlier termination of this Agreement to all their respective properties, facilities, agents, personnel, books, contracts, commitments and records and, during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish reasonably promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed or furnished by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, that the Company may withhold the portions of such documents and information to the extent that the failure to so withhold such information would reasonably be expected to eliminate or waive the rights of such party to assert an attorney-client or attorney work product privilege with respect thereto or otherwise violate the terms of a confidentiality agreement or obligation of non-disclosure in any Contract with a third party in effect on the date of this Agreement, or would contravene any applicable Laws, or result in significant antitrust risk for the Company or any Subsidiary of the Company (provided that the Company will use its reasonable efforts to make appropriate substitute disclosure arrangements under circumstances in which any of the preceding restrictions apply); and provided further that such investigation or access shall not unreasonably disrupt the Company's ’s operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation made pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties heretohereto to consummate the Merger. Notwithstanding anything herein All information exchanged pursuant to this Section 6.4 shall be subject to the contraryconfidentiality agreement between the Company and Parent, any party to this Agreement dated November 14, 2012 (the “Confidentiality Agreement”). In connection with the continuing operation of the business of the Company and each employee, representative, or other agent of such parties) may disclose to any the Company’s Subsidiaries between the date hereof and all persons, without limitation of any kindthe Effective Time, the U.S. "tax treatment" Company shall consult in good faith on a regular and frequent basis with the Representatives of Parent and its Subsidiaries with regard to material operational developments and the general status of ongoing operations pursuant to procedures reasonably requested by Parent, its Subsidiaries or "tax structure" (in each casesuch Representatives, within provided that such procedures are not unreasonably disruptive to the meaning of Treasury Regulation section 1.6011-4) operations of the transactions contemplated hereunder Company and all materials of any kind (including opinions or other tax analysis, but without shall not require disclosure of identifying information or, except not required to be disclosed by the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution preceding provisions of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeSection 6.4.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Total System Services Inc), Agreement and Plan of Merger (NetSpend Holdings, Inc.)
Access to Information; Confidentiality. Subject to applicable lawLaw, the Company shall, and shall cause each of its Subsidiaries shall to, afford to ParentParent and to the Representatives of Parent reasonable access, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout advance notice, during the period prior to the Effective Time Time, to all their respective properties, books, contracts, commitments commitments, personnel (including in order to allow Parent to evaluate such personnel) and records and, during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish promptly to Parent (a) to the extent not publicly available, a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws or commission actions, (b) copies of each “Determination Date Administrator Report” delivered in connection with HSART or HSART II and (c) all other information concerning its businessesbusiness, properties and personnel as Parent may reasonably request (in each case, in a manner so as to not unreasonably interfere in any material respect with the normal business operations of the Company or Merger Sub shall reasonably requestany Company Subsidiary); provided, however, such investigation that the Company shall not unreasonably disrupt be required to permit such access or make such disclosure, to the Company's operations. All nonpublic information provided toextent it determines, after consultation with outside counsel, that such disclosure or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall access would reasonably be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company likely to (the "Confidentiality Agreement"), i) violate the terms of which shall continue in force until the Effective Time; any confidentiality agreement or other Contract with a third party (provided that Parent, Merger Sub and the Company may disclose shall use its reasonable best efforts to obtain the required consent of such information as may be necessary in connection with seeking the Parent Required Statutory Approvals third party to such access or disclosure at Parent’s prior written request and provided, further, that the Company Required Statutory Approvalsshall not be required to pay any fee, penalty or other consideration to any such third party to obtain their consent), (ii) result in the loss of any attorney-client privilege (provided that the Company shall use its reasonable best efforts to allow for such access or disclosure (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege), or (iii) violate any Law (provided that the Company shall use its reasonable best efforts to provide such access or make such disclosure in a manner that does not violate Law). If any material is withheld by the Company pursuant to the proviso to the preceding sentence, the Company shall inform Parent as to the general nature of what is being withheld. Notwithstanding anything contained in this Agreement to the foregoingcontrary, the Company shall not be required to provide any information which it reasonably believes it may not provide access or make any disclosure to Parent by reason of applicable law, rules pursuant to this Section 6.02 to the extent such access or regulations, which constitutes information protected by attorney/client privilege, or which is reasonably pertinent to a litigation where the Company or any Subsidiary is required to keep confidential by reason of contractits Affiliates, agreement on the one hand, and Parent or understanding with third any of its Affiliates, on the other hand, are adverse parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that . All information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation exchanged pursuant to this Section 5.04(a) 6.02 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations confidentiality agreement, dated as of January 30, 2015, between Parent and the parties hereto. Notwithstanding anything herein to Company (the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New Residential Investment Corp.), Agreement and Plan of Merger (Home Loan Servicing Solutions, Ltd.)
Access to Information; Confidentiality. Subject (a) The Company shall (and shall cause each of its Subsidiaries to) afford to applicable lawParent and its Representatives and the Debt Financing Sources and their Representatives reasonable access (and taking into account any remote working arrangement of the Company and its Subsidiaries), at Parent’s sole cost and expense, in a manner not disruptive in any material respect to the operations of the Company and its Subsidiaries, during normal business hours and upon reasonable advance notice throughout the period commencing on the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement in accordance with the terms of Article VII (Termination, Amendment and Waiver), to the properties, books and records of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly such to Parent and its Representatives all information (to the extent not publicly available) concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as Parent may reasonably be requested, including any financial statements, other financial data and monthly financial statements within the time such statements are customarily prepared, and, during such period (it being understood, this Section 5.4(a) shall not require the delivery of financial information not otherwise required to be delivered pursuant to Sections 5.10 or Merger Sub shall reasonably request5.11 of this Agreement); provided, however, such investigation that nothing herein (or in Sections 5.10 or 5.11 of this Agreement) shall not unreasonably disrupt require the Company's operations. All nonpublic Company or any of its Subsidiaries to disclose any information provided to, or obtained by, to Parent, Merger Sub Sub, the Debt Financing Sources or any of their respective Representatives, if such financing source disclosure would, in connection with the reasonable judgment of the Company, (a) cause significant competitive harm to the Company or its Subsidiaries if the transactions contemplated hereby shall be "Confidential Information" for purposes by this Agreement are not consummated, (b) violate applicable Law or the confidentiality provisions of any agreement to which the Company or any of its Subsidiaries is a party or (c) jeopardize any attorney-client or other legal privilege; provided, that the Company will inform Parent of the Confidentiality Agreement dated February 19general nature of the document or information being withheld and reasonably cooperate with Parent to provide such document or information in a manner that would not cause significant competitive harm (including by way of redaction), 2003 between or result in violation of Law or the loss or waiver of such privilege; provided, further, that nothing herein shall authorize Parent and or its Representatives or the Debt Financing Sources or their Representatives to undertake any environmental testing involving sampling of soil, groundwater, air or other environmental medium or similar invasive techniques at any of the properties owned, operated or leased by the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsor its Subsidiaries. Notwithstanding anything herein to the foregoingcontrary, the Company shall not be required to provide access or make any disclosure to Parent, Merger Sub, the Debt Financing Sources or any of their respective Representatives (i) to the extent that such access or information which it is reasonably believes it may not provide pertinent to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which a litigation where the Company or any Subsidiary is required of its Affiliates, on the one hand, and Parent or any of its Affiliates, on the other hand, are adverse parties or (ii) regarding matters that relate to keep confidential by reason the negotiation and execution of contractthis Agreement, agreement or understanding with third parties; provided that, including with respect to any such information, the Company shall, consideration or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms valuation of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto Merger or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contraryAlternative Acquisition Proposal or Superior Proposal, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within other than as required by the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution terms of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SP Plus Corp), Agreement and Plan of Merger (SP Plus Corp)
Access to Information; Confidentiality. Subject to applicable lawLaw, upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; provided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided, further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may if the Company determines, in good faith and in its reasonable judgment, that doing so could violate applicable Law or a Contract or obligation of confidentiality owing to a third party, waive the protection of an attorney-client privilege or other legal privilege or expose the Company to risk of liability for disclosure of Personal Information. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent by reason of applicable lawthat it is withholding such access or information and shall use its reasonable best efforts to communicate, rules or regulations, which constitutes information protected by attorney/client privilege, or which to the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such informationextent feasible, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with would not violate the applicable lawLaw, rule Contract or regulationobligation, risk waiver of such privilege or expose the Company to such risk. All requests for information made pursuant to this Section 6.06 shall be directed to the Person designated by the Company. Until the Closing, the maintenance of that privilege or information provided will be subject to the terms of the relevant contractConfidentiality Agreement, dated as applicable. No investigation pursuant of May 6, 2022, by and between the Company and BAM Re Holdings Ltd. (as may in the future be amended from time to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindtime, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Brookfield Reinsurance Ltd.), Agreement and Plan of Merger (Argo Group International Holdings, Ltd.)
Access to Information; Confidentiality. Subject to applicable law, the (a) The Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountantsRepresentatives, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours and upon reasonable notice throughout advance notice, under the supervision of the Company’s or its Subsidiaries’ personnel and in a manner as shall not unreasonably interfere with the business or operations of the Company or any Subsidiary thereof, during the period prior to from the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement pursuant to their respective Article IX to all of the properties, books, contracts, commitments books and records of the Company and its Subsidiaries, and, during such period, the Company shall furnish as promptly such as practicable to Parent all information concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide access to or disclose information where the Company reasonably determines that such access or disclosure would jeopardize the protection of the attorney-client or any information which it reasonably believes it may not provide other privilege of the Company, contravene any Law, any fiduciary duty or any Contract to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company is a party or any Subsidiary is required cause significant competitive harm to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of its business if the transactions contemplated hereunder and by this Agreement are not consummated, so long as the Company has taken all materials reasonable steps to permit inspection of any kind (including opinions or other tax analysis, but without disclosure of identifying to disclose such information or, except to on a basis that does not contravene the extent relating to such U.S. "tax treatment" applicable Law or "tax structure," any non-public commercial Contract or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within waive the meaning of Treasury Regulation section 1.6011-4)Company’s privilege with respect thereto; provided, that such disclosure may access and information shall be granted or made available, as applicable, to external counsel for Parent (subject to external counsel entering into a customary common interest agreement with the Company, on terms mutually agreeable to Parent and the Company) to the extent required for the purpose of complying with applicable Laws, including Antitrust Laws. Prior to the Effective Time, without the prior written consent of the Company (which consent shall not be made until unreasonably withheld, conditioned or delayed), Parent shall not contact any suppliers to, or customers of, the earlier Company or its Subsidiaries and Parent shall have no right to perform invasive or subsurface investigations of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date any owned or leased real property of the public announcement of the transactions contemplated by this Agreement, Company or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeits Subsidiaries.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Easylink Services International Corp), Agreement and Plan of Merger (Open Text Corp)
Access to Information; Confidentiality. Subject (a) From the date of this Agreement through the Effective Time (or if earlier, the date on which this Agreement is terminated pursuant to applicable lawArticle VII), the Company shall, and shall cause its Subsidiaries to, (i) provide to PubCo and its Representatives access at reasonable times upon prior notice to the officers, employees, properties, books and records of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives"ii) reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning the Company and its businesses, properties and personnel Subsidiaries as Parent PubCo or Merger Sub shall its Representatives may reasonably request; provided. From the date of this Agreement through the Effective Time (or if earlier, howeverthe date on which this Agreement is terminated pursuant to Article VII), such investigation PubCo shall, and shall not unreasonably disrupt the Company's operations. All nonpublic information provided cause its Subsidiaries to, or obtained by(x) provide to the Company and its Representatives access at reasonable times upon prior notice to the officers, Parentemployees, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes properties, books and records of the Confidentiality Agreement dated February 19, 2003 between Parent PubCo Entities and their respective Subsidiaries and (y) furnish promptly such information concerning the PubCo Entities and their respective Subsidiaries as the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company or its Representatives may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsreasonably request. Notwithstanding the foregoing, neither PubCo nor the Company shall not be required to provide such access if it reasonably determines that it would (A) materially disrupt or impair the business or operations of PubCo or the Company, as applicable, or any of its respective Subsidiaries, (B) cause a violation of any Company Material Contract or PubCo Material Contract, (C) constitute a violation of any applicable Law or (D) cause a material risk of disclosure of any information which it reasonably believes it may not provide that in the reasonable judgment of PubCo or the Company, as applicable, would result in the disclosure of any trade secrets of Third Parties. Nothing herein shall require the Company or PubCo or any of their respective Subsidiaries to Parent by reason disclose information to the extent such information would result in a waiver of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege, work product doctrine or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that similar privilege or the terms violate any confidentiality obligation of such Party existing as of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement date of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such Party shall use reasonable best efforts to permit such disclosure may not to be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with the protection of such purposeprivilege or to obtain any consent required to permit such disclosure to be made without violation of such confidentiality obligations, as applicable). Notwithstanding the foregoing, no Company Response Action or PubCo Response Action shall be deemed to violate or breach this Section 5.03 in any way or serve as a basis for PubCo or the Company or any of their respective Affiliates to terminate this Agreement or assert that any condition in Article VI shall not have been satisfied.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Bruush Oral Care Inc.), Agreement and Plan of Merger (Bruush Oral Care Inc.)
Access to Information; Confidentiality. Subject to applicable lawLaw, upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; providedprovided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract having an express confidentiality provision, or waive the protection of an attorney-client privilege or other legal privilege. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent by reason of applicable lawthat it is withholding such access or information and shall use its reasonable best efforts to communicate, rules or regulations, which constitutes information protected by attorney/client privilege, or which to the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such informationextent feasible, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with would not violate the applicable law, rule Law or regulationa Contract having an express confidentiality provision or risk waiver of such privilege. All requests for information made pursuant to this Section 5.07 shall be directed to the Person designated by the Company. Until the Final Effective Time, the maintenance of that privilege or information provided will be subject to the terms of the relevant contractletter agreement dated as of March 7, 2012, by and between the Company and Parent (as applicable. No investigation pursuant amended from time to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindtime, the U.S. "tax treatment" or "tax structure" “Parent Confidentiality Agreement”) and the letter agreement dated as of July 12, 2012, by and among the Company and Parent (in each caseas amended from time to time, within together with the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Parent Confidentiality Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose“Confidentiality Agreements”).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Validus Holdings LTD), Agreement and Plan of Merger (Flagstone Reinsurance Holdings, S.A.)
Access to Information; Confidentiality. Subject to To the extent permitted by applicable lawLaw, the Company agrees that upon reasonable notice it shall (and shall cause its Significant Subsidiaries shall to) afford to ParentParent Group’s Representatives reasonable access, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time Time, to their respective properties, books, contracts, commitments such information regarding the Company and records its Subsidiaries as may reasonably be requested by Parent and shall cause its executive officers to be reasonably available to Parent Group to respond to reasonable questions regarding such information and, during such periodif requested, shall furnish promptly such information concerning the Company agrees to assist Parent and its businesses, properties Representatives in developing a transition or integration plan to be utilized by Parent and personnel as Parent or its Representatives following the consummation of the Merger Sub shall reasonably requestand the other transactions contemplated by this Agreement; provided, however, such investigation shall not unreasonably disrupt that the Company may restrict the foregoing access and assistance to the extent that, in the reasonable judgment of the Company's operations. All nonpublic , (A) any applicable Law requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (B) the information is subject to confidentiality obligations to a third party (provided, that the Company shall use its best efforts to obtain a waiver of such confidentiality obligations to permit Parent Group to have access) or (C) disclosure of any such information or document could result in the loss of attorney-client privilege; provided further, however, that with respect to this clause (C), if requested by Parent, the Company will enter into joint defense agreements or other arrangements with Parent to allow such disclosure, but only if the Company determines, with the advice of its outside legal counsel, but in its sole discretion, that so doing will fully preserve the attorney-client privilege; provided further, however, that any information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby to Parent Group pursuant to this Section 5.03 shall be "Confidential Information" for purposes of subject to the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until to apply, except as otherwise agreed by the Effective Time; provided that ParentCompany, Merger Sub notwithstanding termination of this Agreement. In the event of any conflict between the terms of this Section 5.03 (other than clause (C) above) and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractConfidentiality Agreement, as applicablethe terms of the Confidentiality Agreement shall control. No investigation review of information pursuant to this Section 5.04(a) shall Agreement will affect any of the representations or be deemed to modify any representation or warranty warranties of the parties hereto contained in this Agreement of any party hereto or any condition the conditions hereunder to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Northwestern Corp), Agreement and Plan of Merger (Northwestern Corp)
Access to Information; Confidentiality. (a) Subject to applicable lawLaw, upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; provided that Parent and its Representatives shall (x) conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company and (y) not be permitted to conduct any invasive sampling or environmental testing; provided, further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it if the Company determines, in its reasonable judgment, that doing so would be reasonably believes it may likely to (i) violate applicable Law or a Contract or obligation of confidentiality owing to a third party, (ii) waive the protection of an attorney-client privilege or other legal privilege or (iii) expose the Company to risk of liability for disclosure of sensitive or personal information. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the immediately preceding sentence, it shall provide notice to Parent that it is withholding such access or information and shall use its reasonable best efforts to communicate, to the extent feasible, the applicable information in a way that would not be reasonably likely to violate the applicable Law, Contract or obligation or risk waiver of such privilege. All requests for information made pursuant to this Section 5.07 shall be directed to the Person designated by reason the Company. Until the Effective Time, the information provided will be subject to the terms of applicable lawthe confidentiality agreement dated as of November 5, rules or regulations2020 by and between GLNG and NFE Atlantic Holdings LLC (as may in the future be amended from time to time, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason “Confidentiality Agreement”). For the avoidance of contract, agreement or understanding with third parties; provided thatdoubt, with respect to any such informationthis Section 5.07, the Company shall, or Stonepeak shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor be subject to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Confidentiality Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (New Fortress Energy Inc.), Agreement and Plan of Merger (Golar LNG LTD)
Access to Information; Confidentiality. Subject to applicable law(a) The Company shall, and shall cause the Company Subsidiaries and the officers, directors, employees and agents of the Company and its Subsidiaries shall the Company Subsidiaries, to, afford to Parentthe officers, employees and agents of Parent and Merger Sub Sub, at their sole cost and their financing sources and their respective accountantsrisk, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours from the date hereof through the Effective Date (or earlier termination of this Agreement in accordance with its terms) to its officers, employees, agents, properties, facilities, books, records, contracts and other assets and shall furnish Parent and Merger Sub all financial, operating and other data and information as Parent and Merger Sub through their officers, employees or agents, may reasonably request. Parent and Merger Sub, at their sole cost and risk, shall have the right to make such due diligence investigations as Parent and Merger Sub shall deem necessary or reasonable, upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably requestCompany; provided, however, that any investigations of the Company’s facilities or any visits or telephonic communications with the Company’s customers (to extent such investigation customers are not also customers of Parent or a Parent Subsidiary, in which case, the restrictions contained in this sentence shall not apply to communications regarding the business of Parent or such Parent Subsidiary) shall be conducted under the supervision of appropriate personnel of the Company or with the prior consent of the Company (which consent may cover multiple communications and shall not be unreasonably withheld) and in a manner as not to unreasonably interfere with or disrupt the normal operation of the business of the Company's operations. All nonpublic information provided torequests for such access shall be made to such agents of the Company as the Company may designate, or obtained by, who will be solely responsible for coordinating all such requests and all access permitted hereunder. Neither Parent, Merger Sub nor any of their respective representatives shall contact any of the employees, customers, landlords, licensors or suppliers of the Company or any such financing source Company Subsidiary in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes Transactions, whether in person or by telephone, mail or other means of communication, without the specific prior written authorization of such agents of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and as the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and designate. Neither the Company Required Statutory Approvals. Notwithstanding the foregoing, the nor any Company shall not Subsidiary will be required to provide any afford access or disclose information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by that would jeopardize attorney/-client privilege, contravene any binding agreement with any third party or which the Company or violate any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule Law or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that parties will make reasonable appropriate substitute arrangements in circumstances where the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeprevious sentence applies.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hawk Corp), Agreement and Plan of Merger (Carlisle Companies Inc)
Access to Information; Confidentiality. Subject to applicable lawLaw and, with respect to any classified or controlled unclassified materials, to Parent’s, U.S. Parent’s and their Representatives’ compliance with any security clearance requirements and procedures or export controls requirements (to the extent reasonably determined necessary by the Company in order to comply with applicable Law), and upon reasonable prior written notice, the Company shall, and its shall cause each of the Company Subsidiaries shall to, afford to Parent, Merger Sub U.S. Parent and to their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time to all their respective properties, booksoffices, contracts, commitments personnel and books and records and, during such period, the Company shall, and shall cause each of the Company Subsidiaries to, furnish promptly such to Parent and U.S. Parent all financial, operating and other data and information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall U.S. Parent may reasonably request; provided, however, that any such investigation access shall not interfere unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes business or operations of the Confidentiality Agreement dated February 19, 2003 between Parent and Company or the Company (Subsidiaries or otherwise result in any significant interference with the "Confidentiality Agreement"), the terms prompt and timely discharge by such employees of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalstheir normal duties. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason None of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Company Subsidiary is shall be required to keep confidential by reason (i) provide access to or to disclose information where such access or disclosure would reasonably be expected to jeopardize the attorney-client privilege of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or the Company Subsidiaries (provided that the Company shall cause the relevant Subsidiary to, provide the maximum amount of that information (use its reasonable efforts to allow for such access or shall endeavor to otherwise convey that information disclosure in a mannermanner that would not reasonably be expected to jeopardize the attorney-client privilege) or contravene any Law or binding agreement entered into prior to the date of this Agreement or (ii) provide access to or to disclose such portions of documents or information relating to pricing or other matters that is consistent with the applicable law, rule are highly sensitive where such access or regulation, the maintenance of that privilege or the terms of the relevant contractdisclosure, as applicabledetermined by the Company’s counsel, is reasonably likely to result in antitrust difficulties for the Company or its affiliates. No investigation by Parent or U.S. Parent or any of their respective Representatives and no other receipt of information by Parent or U.S. Parent or any of their respective Representatives shall operate as a waiver or otherwise affect any representation or warranty of the Company or any covenant or other provision in this Agreement. All information exchanged pursuant to this Section 5.04(a) 6.02 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" disclosure agreement dated February 23, 2010, between the Company and "tax structure" Parent (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stanley, Inc.), Agreement and Plan of Merger (Cgi Group Inc)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; provided that Parent and its representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided, further however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may not provide if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to Parent by reason a third-party, waive the protection of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, or which expose the Company to risk of liability for disclosure of sensitive or any Subsidiary personal information. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the preceding sentence, it shall provide notice to Parent that it is required withholding such access or information and shall use its reasonable best efforts to keep confidential by reason communicate, to the extent feasible, the applicable information in a way that would not violate the applicable Law, Contract or obligation or risk waiver of contractsuch privilege. Without limiting the generality of this Section 5.7, agreement or understanding with third parties; provided that, with respect to any such informationfrom the date of this Agreement until the Effective Time, the Company shallwill furnish to the Parent promptly after becoming available, (i) monthly financial statements, including an unaudited balance sheet, income statement and statement of cash flows for each month through the Closing Date, as it may prepare for management’s internal use, and (ii) any update of its outlook for the quarter or shall cause the relevant Subsidiary tobalance of the fiscal year, provide as it may prepare for management’s internal use. Until the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulationEffective Time, the maintenance of that privilege or information provided will be subject to the terms of the relevant contractletter agreement, dated as applicable. No investigation pursuant of April 5, 2012, between the Company and Parent (as it may be amended from time to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindtime, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Dell Inc), Agreement and Plan of Merger (Quest Software Inc)
Access to Information; Confidentiality. Subject to the confidentiality agreement between Parent and the Company, dated January 8, 2014 (the “Confidentiality Agreement”) and applicable lawLaw, the Company and its Subsidiaries shall afford to ParentParent and its officers, Merger Sub and their financing sources and their respective employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") , full access at all reasonable access during normal business hours upon times on reasonable notice throughout during the period prior to between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with Section 8.1 to all their respective properties, books, contracts, commitments commitments, personnel and records records, including for the purpose of conducting Phase I environmental site assessments (provided, that such access shall not unreasonably interfere with the business or operations of the Company) and, during such period, the Company shall furnish promptly to Parent (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state securities laws, and (b) all other information concerning its businessesbusiness, properties properties, litigation matters, personnel and personnel environmental compliance and property condition as Parent or Merger Sub shall may reasonably request; provided, however, such investigation that nothing in this Section 6.2 shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and require the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilegeaccess, or which the Company to disclose any information, if permitting such access or disclosing such information would (x) violate applicable Law, (y) violate any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, its obligations with respect to any such informationconfidentiality (provided, that the Company shall, upon the request of Parent, use its reasonable best efforts to obtain the required consent of any third party to such access or disclosure), or (z) result in the loss of attorney-client privilege (provided, that the Company shall cause the relevant Subsidiary to, provide the maximum amount of that information (use its reasonable best efforts to allow for such access or shall endeavor to otherwise convey that information disclosure in a manner) manner that is consistent does not result in a loss of attorney-client privilege). In addition, the Company and its officers and employees shall reasonably cooperate with Parent in Parent’s efforts to comply with the applicable lawrules and regulations affecting public companies, rule or regulation, including the maintenance of that privilege or the terms of the relevant contract, as applicableXxxxxxxx-Xxxxx Act. No investigation review pursuant to this Section 5.04(a) 6.2 shall affect or be deemed to modify any representation or warranty in this Agreement contained herein, the covenants or agreements of any party the parties hereto or any condition the conditions to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of hereto under this Agreement. Moreover, notwithstanding anything herein All information provided pursuant to this Section 6.2 shall be subject to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" terms of the transactions contemplated by this Confidentiality Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Teva Pharmaceutical Industries LTD), Agreement and Plan of Merger (Nupathe Inc.)
Access to Information; Confidentiality. Subject 5.2.1 From the date of this Agreement to applicable lawthe earlier of the Effective Time and the termination of this Agreement in accordance with Article 7, the Company will, and will cause each of its Subsidiaries shall afford to Parent, (i) provide to Parent and Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours in such a manner as not to interfere unreasonably with the business conducted by the Company or any of its Subsidiaries, upon reasonable prior notice throughout the period prior to the Effective Time Company, to their respective the officers, management, properties, books, contracts, commitments offices and other facilities of the Company and each of its Subsidiaries and to the books and records and, thereof and (ii) use commercially reasonable efforts to furnish during such period, shall furnish promptly normal business hours upon prior notice such information concerning the business, properties, Contracts, assets and liabilities of the Company and each of its businesses, properties and personnel Subsidiaries as Parent or Merger Sub shall its Representatives may reasonably requestrequest and (iii) furnish promptly to Parent a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the U.S. federal or state securities Laws to the extent such report, schedule, registration statement or other document is not available on the SEC’s Electronic Data Gathering, Analysis, and Retrieval system; provided, howeverthat such access may be provided remotely to the extent the Company determines necessary or advisable in light of the COVID-19 pandemic. Nothing in this Section 5.2.1 will be construed to require the Company to (or to cause any of its Subsidiaries to) afford such access or furnish such information to the extent that the Company believes in good faith that doing so would: (A) result in the loss of attorney-client privilege (but the Company will use its commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege), such investigation shall not unreasonably disrupt (B) result in the Company's operations. All nonpublic information provided todisclosure of any trade secrets of third parties or otherwise breach, contravene or obtained by, Parent, Merger Sub violate any effective Contract existing on the date hereof to which the Company or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19its Subsidiaries is a party or (C) breach, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalscontravene or violate any applicable Law. Notwithstanding the foregoing, in the event that the Company shall not be required to provide any information which it reasonably believes it may does not provide access or disclose information in reliance on the immediately preceding sentence, it shall provide notice to Parent by reason of applicable lawthat it is withholding such access or information and shall use its reasonable best efforts to communicate, rules or regulations, which constitutes information protected by attorney/client privilege, or which to the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such informationextent feasible, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with would not waive such privilege or violate the applicable lawLaw, rule or rule, regulation, the maintenance of that privilege order, judgment, decree or the terms of the relevant contractbinding agreement, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contraryincluding entering into a joint defense agreement, any party to this Agreement (and each employee, representative, common interest agreement or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreementsimilar arrangement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.89887722_19 150326672.16
Appears in 2 contracts
Samples: Agreement and Plan of Merger (SMTC Corp), Agreement and Plan of Merger (SMTC Corp)
Access to Information; Confidentiality. Subject (a) Upon reasonable notice, the Company shall (and shall cause each of its Subsidiaries to) afford reasonable access to applicable lawParent’s Representatives, in a manner not disruptive to the operations of the business of the Company and its Subsidiaries shall afford to ParentSubsidiaries, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours and upon reasonable notice throughout the period prior to the Effective Time (or until the earlier termination of this Agreement), to their respective the personnel, agents, properties, books, contracts, commitments books and records of the Company and its Subsidiaries and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as Parent or Merger Sub shall may reasonably requestbe requested; provided, however, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Acquisition Sub if such investigation shall not unreasonably disrupt disclosure would, in the reasonable judgment of the Company's operations. All nonpublic information provided to, (i) cause significant competitive harm to the Company or obtained by, Parent, Merger Sub or any such financing source in connection with its Subsidiaries if the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19are not consummated, 2003 between Parent and (ii) violate Applicable Law, including COVID-19 Measures (provided, that the Company (the "Confidentiality Agreement")shall, the terms of which and shall continue in force until the Effective Time; provided that Parentcause its Subsidiaries to, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required use reasonable best efforts to provide such access as can be provided in a manner without violating such COVID-19 Measures or other applicable Law) or the provisions of any information which it reasonably believes it may not provide Contract to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contracta party or (iii) jeopardize any attorney-client, agreement attorney work product or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableother legal privilege. No investigation or access permitted pursuant to this Section 5.04(a6.5(a) shall affect or be deemed to modify any representation or warranty in made by the Company hereunder. Parent and the Parent External Adviser agree that it and they will not, and will cause its and their Representatives not to, use any information obtained pursuant to this Agreement of Section 6.5(a) for any party hereto competitive or any condition other purpose unrelated to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) consummation of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreementhereby. The intent of this provision is that the transactions contemplated Confidentiality Agreement shall apply with respect to information furnished by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) Company, the Company External Adviser, its Subsidiaries and shall be construed in a manner consistent with such purposethe Company’s officers, employees and other Representatives hereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Portman Ridge Finance Corp), Agreement and Plan of Merger (Harvest Capital Credit Corp)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information and upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other ’s representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent may reasonably request (other than any publicly available document filed by it pursuant to the requirements of Federal or Merger Sub state securities Laws); provided that Parent and its representatives shall reasonably requestconduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third-party, waive the protection of an attorney-client privilege or attorney work product doctrine, or expose the Company to risk of liability for disclosure of sensitive or personal information. Without limiting the foregoing, 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 Parent by reason communicate, to the extent feasible, the applicable information in a way that would not violate the applicable Law, Contract or obligation or risk waiver of applicable lawsuch privilege. Without limiting the generality of this Section 5.7, rules or regulations, which constitutes information protected by attorney/client privilege, or which from the Company or any Subsidiary is required to keep confidential by reason date of contract, agreement or understanding with third parties; provided that, with respect to any such informationthis Agreement until the Effective Time, the Company shallwill furnish to the Parent promptly after becoming available, monthly financial statements including an unaudited balance sheet, income statement and statement of cash flows for each month through the Closing Date, as well as any update of its outlook for the quarter or shall cause the relevant Subsidiary tobalance of the fiscal year, provide as it may prepare for management’s internal use. Until the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulationEffective Time, the maintenance of that privilege or information provided will be subject to the terms of the relevant contractletter agreement, dated as applicable. No investigation pursuant of February 26, 2010, between the Company and Apollo Management VII, L.P. (as it may be amended from time to this Section 5.04(a) time, the “Confidentiality Agreement”), and, without limiting the generality of the foregoing, Parent shall affect or be deemed to modify not, and shall cause its representatives not to, use such information for any representation or warranty in this Agreement of any party hereto or any condition purpose unrelated to the obligations consummation of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeTransactions.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Aeroways, LLC), Agreement and Plan of Merger (Cke Restaurants Inc)
Access to Information; Confidentiality. (a) Subject to applicable lawLaws relating to the exchange of information, from the date hereof until the earlier of the Effective Time or the date on which this Agreement is terminated in accordance with its terms, the Company and its Subsidiaries Parent shall afford to Parent, Merger Sub the other party and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") its Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s or Parent’s, as applicable, properties, books, contracts, commitments Contracts and records and, during such period, and the Company and Parent shall furnish promptly to the other party such information concerning its businessesbusiness and properties as such party may reasonably request (other than any publicly available document filed by it pursuant to the requirements of federal or state securities Laws); provided that the Company, properties Parent and personnel their respective Representatives shall conduct any such activities in such a manner as Parent not to interfere unreasonably with the business or Merger Sub shall reasonably requestoperations of the other party; and provided, howeverfurther, such investigation that the Company and Parent shall not unreasonably disrupt be obligated to provide such access or information if the Company's operationsCompany or Parent, as applicable, determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to a third-party (provided that the Company or Parent, as applicable, shall use commercially reasonable efforts to obtain any consents of third parties that are necessary to allow such information to be disclosed to the other) or jeopardize the protection of the attorney-client privilege (provided that the Company or Parent, as applicable, shall use commercially reasonable efforts to allow for such access or disclosure in a manner that does not result in loss of the attorney-client privilege). All nonpublic Until the Effective Time, the information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with will be subject to the transactions contemplated hereby shall be "Confidential Information" for purposes terms of the Confidentiality Agreement Agreement, dated February 19as of December 12, 2003 2012, between Parent and the Company (the "“Confidentiality Agreement"”), and, without limiting the terms generality of which the foregoing, Parent and Company shall continue in force until not, and Parent and Company shall cause their respective Representatives not to, use such information for any purpose unrelated to the Effective Time; provided that consummation of the Transactions. No investigation shall affect the Company’s, Parent’s or Merger Sub’s representations and warranties contained herein, or limit or otherwise affect the remedies available to Parent, Merger Sub and or the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Asset Acceptance Capital Corp), Agreement and Plan of Merger (Encore Capital Group Inc)
Access to Information; Confidentiality. Subject to contractual and legal restrictions applicable lawto the Company or Parent or any of their respective Subsidiaries, each of the Company and Parent shall, and shall cause each of its respective Subsidiaries shall to, afford to Parent, Merger Sub the other and their financing sources and their respective accountants, counsel, financial advisors and to the Representatives of such other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout during the period prior from the date of this Agreement to the Effective Time or the date of the termination of this Agreement, as the case may be, to all of their respective properties, books, contracts, commitments commitments, personnel and records (including the work papers of independent accountants, if available and subject to the consent of such independent accountants) and, during such period, each of the Company and Parent shall, and shall cause each of its respective Subsidiaries to, furnish promptly to the other and to the Representatives of such other all information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall such other may reasonably request; provided, however, that such investigation shall access does not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes ordinary course operations of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking Acquired Companies or the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractCompanies, as applicable. No access, materials, information or investigation pursuant to this Section 5.04(a) 5.6 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein This Section 5.6 shall not require any Acquired Company or Parent Company to permit any access, or to disclose any materials or information, that in the reasonable judgment of such party would reasonably be expected to (i) result in the disclosure of any trade secrets of third parties or a violation of any of its obligations with respect to confidentiality under any Contract, Law or otherwise (provided that party shall have used its commercially reasonable efforts to obtain the consent of such third party to such access or disclosure), (ii) result in the loss of the attorney-client privilege, work product doctrine or other legal privilege with respect to such materials or information or (iii) in the case of documents or portions of documents relating to pricing or other matters that are highly sensitive, result in a violation of applicable Law (including a Governmental Entity alleging that providing such information violates any Regulatory Law). If any material is withheld by a party pursuant to the contrarypreceding sentence, any such party shall inform the other as to this Agreement (the general nature of what is being withheld and each employee, representative, or other agent of such parties) may disclose use commercially reasonable efforts to any and all persons, without limitation of any kind, make appropriate substitute arrangements to permit reasonable disclosure under circumstances in which the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) restrictions of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysispreceding sentence apply, but without disclosure of identifying information or, except to the extent relating permitted by applicable Law. All materials and information exchanged or to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided which access is granted pursuant to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not this Section 5.6 shall be made until the earlier of (x) the date of public announcement of discussions relating subject to the transactions contemplated letter agreement, dated as of October 16, 2017 (the “Confidentiality Agreement”), by this Agreement, (y) and between the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) Company and shall be construed in a manner consistent with such purposeParent.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Infinity Property & Casualty Corp), Agreement and Plan of Merger (KEMPER Corp)
Access to Information; Confidentiality. Subject to applicable lawLaw and any applicable Judgment, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement pursuant to Section 7.01, upon reasonable notice, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and(other than any of the foregoing that relate to the negotiation and execution of this Agreement, during such periodor, except as expressly provided in Section 5.02, to any Takeover Proposal or any other transactions potentially competing with or alternative to the Transactions or proposals from other parties relating to any competing or alternative transactions that occurred prior to the date hereof or were made in accordance with the terms of this Agreement) and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; providedprovided that Parent and its Representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it if the Company determines, in its reasonable judgment, that doing so is reasonably believes it may not provide likely to Parent by reason (i) violate applicable Law or an applicable Judgment, (ii) jeopardize the protection of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, attorney work product protection or which other legal privilege or (iii) expose the Company to risk of liability for disclosure of sensitive or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to personal information. In any such informationevent, the Company shallshall use its reasonable best efforts to communicate, or shall cause to the relevant Subsidiary toextent feasible, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with the would not violate applicable lawLaw, rule Judgment or regulation, the maintenance obligation or risk waiver of that such privilege or protection or risk such liability, including entering into a joint defense agreement, common interest agreement or other similar arrangement. All requests for information made pursuant to this Section 5.05 shall be directed to the executive officer or other Person designated by the Company. Until the Effective Time, all information provided will be subject to the terms of the relevant contractletter agreement dated as of November 8, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to 2016, by and among the obligations of Company and Fresenius Kabi USA, LLC (the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fresenius SE & Co. KGaA), Agreement and Plan of Merger (Akorn Inc)
Access to Information; Confidentiality. Subject to applicable lawEach of the Burro Parties and the Kick Parties shall, the Company and its shall cause each of their Subsidiaries shall to, afford to Parent, Merger Sub and their financing sources each other and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours upon reasonable notice throughout hours, during the period prior to the Initial Effective Time or the termination of this Agreement in accordance with its terms, to all their respective properties, assets, books, contracts, commitments commitments, personnel and records and, during such period, each of the Burro Parties and the Kick Parties shall, and shall cause each of their Subsidiaries to, furnish promptly to the other Party: (a) 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 or state securities laws and (b) all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may be reasonably requestrequested (including Tax Returns filed and those in preparation and the work papers of its auditors); provided, however, such investigation that the foregoing shall not unreasonably disrupt require either Party to disclose any information to the Company's operationsextent such disclosure would contravene applicable Law. All nonpublic such information provided to, or obtained by, Parent, Merger Sub or any such financing source shall be held confidential in connection accordance with the transactions contemplated hereby terms of (i) the Confidentiality Agreement, between Kick and the Partnership, dated as of October 19, 2023 (the “Confidentiality Agreement”), (ii) the Clean Team Agreement, between the Partnership and Kick, dated as of November 8, 2023 (the “Kick Clean Team Agreement”), and (iii) the Clean Team Agreement between the Partnership and Kick, dated as of November 20, 2023 (the “Burro Clean Team Agreement” and together with the Kick Clean Team Agreement, collectively the “Clean Team Agreements” and each a “Clean Team Agreement”). The obligations of Kick and the Partnership under the Confidentiality Agreement and Clean Team Agreements shall remain in full force and effect in accordance with their terms; provided, however, that nothing in the Confidentiality Agreement or Clean Team Agreements shall be "Confidential Information" for purposes deemed to restrict the performance by the Burro or Kick of their respective obligations under this Agreement, and in the case of any conflict between the terms of this Agreement, on one hand, and the terms of the Confidentiality Agreement dated February 19or Clean Team Agreements, 2003 between Parent and on the Company (the "Confidentiality Agreement")other hand, the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposecontrol.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kodiak Gas Services, Inc.), Agreement and Plan of Merger (Kodiak Gas Services, Inc.)
Access to Information; Confidentiality. Subject to applicable law(a) During the Interim Period, upon reasonable prior written notice from Parent, the Company shall, and shall cause its subsidiaries to, and shall use its reasonable best efforts to cause its Representatives to, (i) afford Parent and its Subsidiaries shall afford to ParentRepresentatives reasonable access, Merger Sub and their financing sources and their respective accountantsconsistent with applicable Law, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to its and their respective officers, employees and Representatives and properties, offices, and other facilities and to all books and records, and shall furnish Parent and its Representatives promptly with all financial, operating and other data and information as Parent and its Representatives from time to time reasonably request in writing, (ii) to the Effective Time to their respective propertiesextent permitted by Law, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesseseach report, properties schedule and personnel as Parent other document filed or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt received by the Company or any of the Company's operations. All nonpublic information provided to’s subsidiaries pursuant to the requirements of federal or state securities or regulatory Laws or filed with or sent to the SEC, or obtained byFERC, Parentthe Nuclear Regulatory Commission, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company New Mexico Public Regulations Commission (the "Confidentiality Agreement"“NMPRC”), the terms Public Utility Commission of which shall continue Texas (“PUCT”), CFIUS, the U.S. Department of Justice, the Federal Trade Commission or any other Governmental Entity, and (iii) upon written request, as soon as reasonably practicable provide Parent with information relating to any material developments in force until the Effective Time; provided that Parent, Merger Sub and any audit or similar proceeding related to any material Tax matters of the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsor any of its subsidiaries. Notwithstanding the foregoing, any such investigation or consultation shall be conducted in such a manner as not to interfere unreasonably with the business or operations of the Company or its subsidiaries, and shall not include any environmental sampling or invasive environmental testing without the Company’s consent. Neither the Company nor any of its subsidiaries shall be required to provide access or to disclose information where such access or disclosure would violate or prejudice its rights or the rights of any of its officers, directors or employees, give rise to a material risk of waiving any attorney-client privilege of the Company or any of its subsidiaries, or contravene any Law, rule, regulation, order, judgment or decree of any Governmental Entity, or Contract; provided, however that the Company shall use its reasonable best efforts to (A) allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege (including negotiating in good faith with Parent to seek alternative means to disclose such information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by as nearly as possible without affecting such attorney/-client privilege, including entry into a joint defense agreement), (B) obtain the required consent of any third party to provide access to or disclosure of such information with respect to any confidential Contract to which the Company or any Subsidiary its subsidiaries is required party, or (C) develop an alternative to keep confidential by reason of contract, agreement or understanding with third partiesproviding such information so as to address such matters that is reasonably acceptable to Parent and the Company; provided that, with respect to any such information, it being understood and agreed that (i) the Company shallshall advise Parent in such circumstances that it is unable to comply with Parent’s reasonable requests for information as a result of attorney-client privilege, Contract obligation or applicable Law, and the Company shall cause use its reasonable best efforts to generally describe the relevant Subsidiary totypes of information being withheld and (ii) Parent shall reimburse the Company for its reasonable, provide the maximum amount of that information (or shall endeavor to otherwise convey that information documented, out-of-pocket expenses incurred in a manner) that is consistent connection with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableCompany’s actions described above in clauses (A) — (C). No investigation All requests for information made pursuant to this Section 5.04(a6.7(a) shall affect be directed to the executive officer or other Person designated by the Company and all access granted to Parent and its Representatives shall be deemed under the supervision of such executive officer or other Person, and Parent and its Representatives seeking access shall use their reasonable best efforts not to modify directly contact any other officer, director, employee, agent or representative of the Company without the prior approval of such Persons designated by the Company. No access, review or notice pursuant to this Section 6.7 shall have any effect for the purpose of determining the accuracy of any representation or warranty in this Agreement of given by any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose Parties to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeParties.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Texas New Mexico Power Co), Agreement and Plan of Merger (Avangrid, Inc.)
Access to Information; Confidentiality. Subject to applicable law, During the Pre-Closing Period the Company shall (i) afford Parent and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout (under the period prior supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) to all of its and the Effective Time to their respective Company Subsidiaries’ properties, booksbooks and records, contractsContracts, commitments personnel, advisors and records andfacilities, during such periodand (ii) furnish, shall furnish as promptly such as reasonably practicable, to Parent all information concerning its businessesand the Company Subsidiaries’ business, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoingimmediately preceding sentence, the Company shall not be required to provide afford access or furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the date of this Agreement, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any information which it reasonably believes it may not provide to Parent presentations or other materials prepared by reason or for the Company Board) where the Company Board discussed (i) the Transactions or any similar transaction involving the sale of applicable law, rules or regulations, which constitutes information protected by attorney/client privilegethe Company, or which a material portion of its assets, to, or combination of the Company with, any other Person, (ii) any Company Takeover Proposal or (iii) any Intervening Event, (c) the Company in good faith determines, light of any COVID-19 Responses, that such access would reasonably be expected to jeopardize the health or safety of any employee of the Company or the Company Subsidiaries or any Subsidiary is required to keep confidential by reason of contract, agreement the Company’s Representatives or understanding (d) the Company determines in good faith after consulting with third partiescounsel that affording such access or furnishing such information would jeopardize the attorney-client privilege of the Company or violate applicable Law; provided that, in the case of clauses (a) and (d), the Company will use its reasonable best efforts to obtain any required consents for the disclosure of such information and/or otherwise take such other reasonable action (including entering into a joint defense agreement or similar arrangement) with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor as is necessary to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that permit disclosure to Parent without jeopardizing such attorney-client privilege or the terms of the relevant contract, as applicableviolating applicable Law or confidentiality agreement. No investigation All information exchanged pursuant to this Section 5.04(a) 6.01 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations of confidentiality letter agreement dated December 12, 2021 between the parties hereto. Notwithstanding anything herein to Company and Parent, as amended (the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Stryker Corp), Agreement and Plan of Merger (Stryker Corp)
Access to Information; Confidentiality. Subject to applicable lawThe Company shall, the Company and shall cause each of its Subsidiaries shall to, afford to Parent and to Parent, Merger Sub 's Representatives full access upon reasonable advance notice and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time or the termination of this Agreement to all their respective properties, assets, books, contractsrecords, commitments Contracts, Permits, documents, information, directors, officers and employees but only to the extent that such access does not unreasonably interfere with the business or operations of the Company and its Subsidiaries (and access to personnel records andwill be provided only if authorized by the specific employees), and during such periodperiod the Company shall, and shall cause each of its Subsidiaries to, furnish promptly such to Parent any information concerning its businesses, properties and personnel business as Parent or Merger Sub shall may reasonably requestrequest (including the work papers of Ernst & Young LLP); provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide (or to cause any of its Subsidiaries to) afford such access or furnish such information which it reasonably believes it may to the extent that doing so is restricted under applicable Law or otherwise would result in the loss of attorney-client privilege (provided that the Company shall use its reasonable efforts to allow for such access or disclosure in a manner that does not provide to Parent by reason result in a loss of applicable law, rules or regulations, which constitutes information protected by attorney/-client privilege). Following the date of this Agreement and prior to the Effective Time, Parent may (but shall not be required to), following reasonable notice to the Company, contact and interview any Company Personnel and review the personnel records (if access to such personnel records is authorized by the specific employees) and such other information concerning the Company Personnel as Parent may reasonably request (provided such review is permitted by applicable Law). No investigation by Parent or which any of its Representatives and no other receipt of information by Parent or any of its Representatives shall operate as a waiver or otherwise affect any representation or warranty of the Company or any Subsidiary is covenant or other provision in this Agreement. Except as required by any applicable Law or Judgment, Parent will hold, and will direct its Representatives to keep hold, any and all information received from the Company confidential by reason of contract, agreement or understanding in accordance with third parties; provided that, the Confidentiality Agreement and the Standstill Agreement and shall otherwise comply with the Confidentiality Agreement and Standstill Agreement with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Kosan Biosciences Inc), Agreement and Plan of Merger (Bristol Myers Squibb Co)
Access to Information; Confidentiality. Subject to applicable lawThe Company shall, the Company and shall cause each of its Subsidiaries shall to, afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") Representatives reasonable access during normal business hours upon reasonable notice throughout hours, during the period prior to the Effective Time Time, to all their respective properties, assets, books, contracts, commitments commitments, personnel and records and, during such period, the Company shall, and shall cause each of its Subsidiaries to, furnish promptly to Parent: (a) 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 or state securities laws, and (b) all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably requestrequest (including Tax Returns filed and those in preparation and the workpapers of its auditors); provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company that (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, a) the Company shall not be required to provide any information which such access if it reasonably believes it may not provide determines that such access is reasonably likely to Parent by reason materially disrupt or impair the business or operations of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, its Subsidiaries and (b) the foregoing shall not require the Company shallto disclose any information to the extent it reasonably determines that such disclosure is reasonably likely to (i) result in a waiver of attorney-client privilege, work product doctrine or similar privilege, (ii) cause competitive harm to the business of the Company and its Subsidiaries if the transactions contemplated by this Agreement are not consummated, or shall cause (iii) violate any applicable Law or any confidentiality obligation of such party; provided, however, that in the relevant Subsidiary tocase that such disclosure is prohibited by applicable Law (including antitrust Law), Parent and the Company each agree to use reasonable best efforts to 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 coordination with counsel and the Company) will provide Parent with timely access to the maximum amount fullest extent possible to the substance of that the information (or shall endeavor to otherwise convey that information described in this Section 5.5 in a manner) manner that is consistent allows the Company to comply with the applicable law, rule or regulation, the maintenance of that privilege or Law. All such information shall be held confidential in accordance with the terms of the relevant contractConfidentiality Agreement among Xxxxxx Americas LLC, BI-LO, LLC and the Company dated as applicableof February 28, 2011 (the “Confidentiality Agreement”). No investigation pursuant to this Section 5.04(a) 5.5 or information provided, made available or delivered to Parent pursuant to this Agreement shall affect any of the representations, warranties, covenants, rights or be deemed to modify any representation remedies, or warranty in this Agreement of any party hereto or any condition the conditions to the obligations of of, the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposehereunder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Southeastern Grocers, LLC), Agreement and Plan of Merger (Winn Dixie Stores Inc)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") ’s Representatives reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective officers, employees, accountants, properties, books, contracts, commitments Contracts and records and, during such period, of the Company and its Subsidiaries and the Company shall furnish promptly such to Parent (i) a copy of each report, schedule and other document filed by it pursuant to the requirements of federal or state securities Laws and rules and regulations promulgated thereunder and (ii) other information concerning the business and properties of the Company and its businesses, properties and personnel Subsidiaries as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide access to any information or documents which it reasonably believes it may not provide to Parent by reason would, in the reasonable judgment of applicable lawthe Company, rules or regulations, which constitutes information protected by attorney/client privilege, or which (i) breach any agreement of the Company or any Subsidiary of its Subsidiaries with any third party, (ii) constitute a waiver of the attorney-client or other privilege held by the Company or any of its Subsidiaries (iii) otherwise violate any applicable Laws or (iv) which would result in a competitor of the Company or any of its Subsidiaries receiving material information which is competitively sensitive; provided, further, however, that the Company will use its reasonable best efforts to obtain any required to keep consents for the disclosure of such information or documents and take such other action (such as the redaction of identifying or confidential by reason of contract, information or entry into a joint defense agreement or understanding with third parties; provided that, other arrangement to avoid loss of attorney client privilege) with respect to any such informationinformation or documents as is necessary to permit disclosure to Parent and Parent’s Representatives. Until the Effective Time, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor provided pursuant to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or this Agreement will be subject to the terms of the relevant contractConfidentiality Agreement, dated as applicable. No investigation pursuant of December 31, 2007, between Parent, the record and beneficial owner of all of the outstanding capital stock of Parent, and the Company (as it may be amended from time to this Section 5.04(a) time, the “Confidentiality Agreement”), which shall affect or be deemed to modify any representation or warranty in survive the termination of this Agreement of any party hereto or any condition to in accordance with the obligations terms of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Confidentiality Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Galderma Laboratories, Inc.), Agreement and Plan of Merger (Collagenex Pharmaceuticals Inc)
Access to Information; Confidentiality. Subject to applicable lawUpon reasonable prior notice, the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources to Parent's officers, employees, accountants, counsel, financial advisors and their respective other representatives, reasonable access during normal business hours during the period prior to the Effective Time or the termination of this Agreement to all its properties, books, contracts, commitments, personnel and records and, during such period, the Company shall make available to Parent to the full extent and in the manner permitted by law (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its business, properties and personnel as Parent may reasonably request, unless terms of an agreement prohibit disclosure to third parties; provided, however, that (i) Parent shall not contact, and Parent shall ensure that none of its officers, employees, accountants, counsel, financial advisors or other representatives contacts, any employee of the Company or any of its subsidiaries without the prior authorization of the Company's Chief Executive Officer, Vice President and General Counsel or Chief Financial Officer, and (ii) Parent shall take all reasonable action to ensure that none of its employees, accountants, counsel, financial advisors and other representatives (interferes with or otherwise disrupts the "business or operations of the Company while exercising the rights provided under this Section 5.4. Parent Representatives") shall afford to the Company, and to the Company's officers, employees, accountants, counsel, financial advisors and other representatives, reasonable access during normal business hours upon reasonable notice throughout during the period prior to the Effective Time or the termination of this Agreement to their respective all its properties, books, contracts, commitments commitments, personnel and records and, during such period, Parent shall furnish promptly make available to the Company (a) a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of Federal or state securities laws and (b) all other information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall the Company may reasonably request, unless terms of an agreement prohibit disclosure to third parties; provided, however, such investigation that (i) the Company shall not unreasonably disrupt contact, and the Company's operations. All nonpublic information provided toCompany shall ensure that none of its officers, employees, accountants, counsel, financial advisors or obtained byother representatives contacts, Parent, Merger Sub any employee of Parent or any such financing source of its subsidiaries without the prior authorization of Parent's Chief Executive Officer, Chief Operating Officer or Chief Financial Officer, and (ii) the Company shall take all reasonable action to ensure that none of its employees, accountants, counsel, financial advisors or other representatives interferes with or otherwise disrupts the business or operations of Parent while exercising the rights provided under this Section 5.4. Parent and the Company will each hold, and will cause each of its officers, employees, accountants, counsel, financial advisors and other representatives and affiliates to hold, any and all information received from the other party, directly or indirectly, in connection confidence, in accordance with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19as of April 3, 2003 2000 between Parent and the Company (as it may be amended from time to time, the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hadco Corp), Agreement and Plan of Merger (Irvine Horace H Ii)
Access to Information; Confidentiality. Subject The Company shall (and shall cause each of its Subsidiaries to) afford reasonable access to applicable lawParent’s Representatives, during normal business hours and upon reasonable notice, throughout the period from the date of this Agreement to the Effective Time (or until the earlier termination of this Agreement in accordance with Section 7.1), to the personnel, advisors, properties, books and records of the Company and its Subsidiaries shall afford to Parent, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall (and shall cause each of its Subsidiaries to) furnish reasonably promptly to such Representatives all information concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries, and to provide copies thereof, as may reasonably be requested; provided that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Merger Sub shall reasonably request; providedif such disclosure would, however, such investigation shall not unreasonably disrupt in the reasonable judgment of the Company's operations. All nonpublic information provided to, (a) violate applicable Law or obtained by, Parent, Merger Sub or the provisions of any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required agreement to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contracta party or (b) jeopardize any attorney-client or other legal privilege; provided, agreement or understanding with third parties; provided thatfurther, with respect to any that in each such informationcase, the Company shallshall cooperate with Parent to enable Parent and Parent’s Representatives to enter into appropriate confidentiality, joint defense or shall cause the relevant Subsidiary to, provide the maximum amount of similar documents or arrangements so that information (or shall endeavor Parent and Parent’s Representatives may have access to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicablesuch information. No investigation or access permitted pursuant to this Section 5.04(a) 5.5 shall affect or be deemed to modify any representation representation, warranty, covenant or warranty agreement made by the Company hereunder. All information furnished by the Company, its Subsidiaries and the Company’s officers, employees and other Representatives pursuant to this Section 5.5 shall be kept confidential in this Agreement of any party hereto or any condition to accordance with the obligations of the parties heretoConfidentiality Agreement. Notwithstanding anything herein to the contrary, any party to the parties hereby agree and acknowledge that the standstill and similar restrictions in the Confidentiality Agreement shall not apply upon the execution and delivery of this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating required to such U.S. "tax treatment" or "tax structure," permit any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" action contemplated hereby and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made accordance herewith and solely until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution any valid termination of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent accordance with such purposeits terms.
Appears in 2 contracts
Samples: Agreement and Plan of Merger, Agreement and Plan of Merger (United Technologies Corp /De/)
Access to Information; Confidentiality. Subject (a) During the Interim Period, to the extent permitted by applicable lawLaw and contracts, each Party shall, and shall cause each of its Subsidiaries to, (i) furnish the Company and its Subsidiaries shall afford to or Parent, Merger Sub as applicable, with such financial and their financing sources and their respective accountants, counsel, financial advisors operating data and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior information with respect to the Effective Time to their respective business, properties, offices, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel of the Company and the Company Subsidiaries or Parent and the Parent Subsidiaries, as Parent applicable, as the Company or Merger Sub shall Parent, as applicable, may from time to time reasonably request, and (ii) with respect to the Company and the Company Subsidiaries and subject to the terms of the Company Leases, facilitate reasonable access for Parent and its authorized Representatives during normal business hours, and upon reasonable advance notice, to all Company Properties; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No no investigation pursuant to this Section 5.04(a) 7.6 shall affect or be deemed to modify any representation of the representations or warranty warranties made by the Company Parties or the Parent Parties, as applicable, hereto and all such access shall be coordinated through the Company or Parent, as applicable, or its respective designated Representatives, in accordance with such reasonable procedures as they may establish. Notwithstanding the foregoing, neither the Company nor Parent shall be required by this Section 7.6 to provide the other Party or the Representatives of such other Party with access to or to disclose information (A) that is subject to the terms of a confidentiality agreement with a Third Party entered into prior to the date of this Agreement or entered into after the date of this Agreement in the ordinary course of business consistent with past practice (if the Company or Parent, as applicable, has used commercially reasonable efforts to obtain permission or consent of such Third Party to such disclosure), (B) the disclosure of which would violate any party hereto Law or legal duty of the Party or any condition of its Representatives (provided, however, that the Company or Parent, as applicable, shall use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Law or legal duty), (C) that is subject to any attorney-client, attorney work product or other legal privilege or would cause a risk of a loss of privilege to the obligations disclosing Party (provided, however, that the Company or Parent, as applicable, shall use its commercially reasonable efforts to make appropriate substitute arrangements to permit reasonable disclosure that does not result in a loss of such attorney-client, attorney work product or other legal privilege) or (D) if it reasonably determines that such access is reasonably likely to materially disrupt, impair or interfere with its, or its Subsidiaries’, business or operations; provided, however, that the parties heretoParties will work in good faith to determine a means to provide access that will not materially disrupt, impair or interfere with such business or operations. Notwithstanding anything herein to the contraryforegoing, any party access pursuant to this Agreement (and each employee, representative, or other agent of such parties) may disclose Section 7.6 shall not include the right to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials perform environmental testing of any kind (including opinions any invasive environmental testing) without the prior written consent of the Company (such consent not to be unreasonably withheld, conditioned or other tax analysis, but without disclosure delayed for any environmental testing that is non-invasive). Each of identifying information or, except the Company and Parent will use its commercially reasonable efforts to minimize any disruption to the extent relating businesses of the other Party that may result from the requests for access, data and information hereunder. Prior to the Company Merger Effective Time, each of the Company Parties and each of the Parent Parties shall not, and shall direct their respective Representatives and Affiliates not to, contact or otherwise communicate (for the avoidance of doubt, other than any public communications otherwise permitted by this Agreement) with parties with which such U.S. "tax treatment" Party knows the other Party has a business relationship (including tenants/subtenants) regarding the business of such other Party or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" this Agreement and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreementhereby without the prior written consent of such other Party (such consent not to be unreasonably withheld, (y) the date of the public announcement of the transactions contemplated by this Agreement, conditioned or (z) the date of execution of this Agreement. Moreoverdelayed); provided that, notwithstanding the foregoing or anything herein else in this Agreement or in the Confidentiality Agreement to the contrary, there shall be no limitation on a Party and its respective Representatives and Affiliates may contact or otherwise communicate with such parties without any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" consent of the transactions other Party (I) in pursuing its own business activities (operating in the ordinary course) or (II) in connection with the activities contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeSection 7.18.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Prologis, L.P.), Agreement and Plan of Merger (DUKE REALTY LTD PARTNERSHIP/)
Access to Information; Confidentiality. Subject to applicable law, the The Company and its the Subsidiaries shall afford to Parent, Merger Sub Buyer and their financing sources and their respective its accountants, counsel, financial advisors and other representatives, and to prospective financing sources, investors and placement agents and each of their respective representatives (the "Parent collectively, “Buyer’s Representatives") reasonable access ”), full access, during normal business hours upon reasonable notice throughout the period prior to the Effective Time Closing, to their respective propertiesthe Company’s and Subsidiaries’ properties and facilities (including all Company Properties and the buildings, structures, fixtures, appurtenances and Improvements erected, attached or located thereon), books, contractsfinancial information (including working papers and data in the possession of the Company, commitments Sellers and the Subsidiaries or their respective independent public accountants, internal audit reports, and “management letters” from such accountants with respect to each of the Company and the Subsidiaries’ systems of internal control), Contracts and records of the Company and the Subsidiaries and, during such period, shall furnish promptly such information concerning its the businesses, properties and personnel of the Company and the Subsidiaries as Parent or Merger Sub Buyer shall reasonably request; provided, however, that such investigation shall not unreasonably disrupt the Company's Company and the Subsidiaries’ operations. All nonpublic information provided toIn addition, or obtained by, Parent, Merger Sub or any such financing source in connection with prior to the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoingClosing, the Company and the Subsidiaries shall not be required afford to provide any information which it reasonably believes it may not provide Buyer and to Parent by reason Buyer’s Representatives the opportunity to meet with and to discuss their relationships post-Closing with Significant Providers, IC Representatives, other service providers and other material personnel of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required and the Subsidiaries. Prior to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such informationthe Closing, the Company shalland the Subsidiaries shall keep Buyer informed as to all material matters involving the operations and businesses of each of the Company and the Subsidiaries. The Company and the Subsidiaries shall authorize and direct the appropriate officers, directors, managers and Employees to discuss matters involving the operations and businesses of each of the Company and the Subsidiaries with representatives of Buyer and its prospective financing sources, investors or shall cause placement agents. Prior to the relevant Subsidiary toClosing, provide any non-public information provided to or obtained by Buyer pursuant to this Section 6.1 will be subject to the maximum amount of that information Confidentiality and Non-Disclosure Agreement, dated July 25, 2019, between the Company and Blucora, Inc. (or shall endeavor the “Confidentiality Agreement”), and must be held by Buyer in accordance with and be subject to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicableConfidentiality Agreement. No investigation information provided to or obtained by Buyer pursuant to this Section 5.04(a) 6.1 or otherwise shall limit or otherwise affect the remedies available hereunder to Buyer (including Buyer’s right to seek indemnification pursuant to Article VIII), or be deemed to modify any representation the representations or warranty in this Agreement of any party hereto warranties of, or any condition the conditions to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindof, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Blucora, Inc.), Stock Purchase Agreement (Blucora, Inc.)
Access to Information; Confidentiality. Subject Seller shall, and shall cause each of the Seller Subsidiaries to, afford to applicable lawParent and its officers, employees, accountants, counsel, financial advisors and other representatives, reasonable access upon reasonable prior notice and during normal business hours and without disruption to the Company business or operations of Seller and its Subsidiaries during the period prior to the Closing to all the Portfolio Properties, and books, contracts, commitments, personnel and records to the extent relating thereto and, during such period, Seller shall, and shall afford cause each of the Seller Subsidiaries to, (a) furnish promptly to ParentParent a copy of each report, schedule, registration statement and other document filed by it during such period pursuant to the requirements of federal or state Law, to the extent relating to the Portfolio and (b) use reasonable best efforts to furnish promptly to Parent all other information concerning the Portfolio as Parent may reasonably request. Purchaser shall have no right to access to, and shall not seek access to or visit, any Portfolio Property owned as of the date hereof by Chateau Communities, Inc. or its subsidiaries until the Merger Sub Transaction Consummation without the prior written consent of Seller in its sole discretion. No investigation under this Section 4.1 or otherwise shall affect any of Seller's representations or warranties contained in this Agreement or any condition to the obligations of the parties under this Agreement. Each of Seller and their financing sources Parent and their Purchaser will hold, and will cause its respective officers, employees, accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout the period prior and Affiliates to hold, any nonpublic information in confidence to the Effective Time to their respective properties, books, contracts, commitments and records and, during such period, shall furnish promptly such information concerning its businesses, properties and personnel as Parent or Merger Sub shall reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained extent required by, Parentand in accordance with, Merger Sub or any such financing source in connection and will comply with the transactions contemplated hereby shall be "Confidential Information" for purposes provisions of the Confidentiality Agreement letter agreement between Chateau Communities, Inc. and Purchaser dated February 19as of April 29, 2003, as amended, including by adding Seller as a beneficiary thereof, on August 14, 2003 between Parent and the Company (as amended, the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contract, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty Nothing in this Agreement of any party hereto or any condition to the obligations Confidentiality Agreement shall prohibit the disclosure of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (tax treatment and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (, each as defined in each case, within the meaning of Treasury Regulation section Regulations Section 1.6011-4) , of the Sale or other transactions contemplated hereunder hereby (but no other details about the matters covered by this Agreement, including the identities of the parties) from and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except after the earliest to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier occur of (xi) the date of the public announcement of discussions relating to the transactions contemplated by this AgreementSale, (yii) the date of the public announcement of the transactions contemplated by this AgreementSale, or (ziii) the date of the execution of an agreement (with or without conditions) to enter into the Sale (it being understood by the parties that a "public announcement of discussions" shall mean a public announcement permitted by this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether agreement (or not independent from otherwise permitted by agreement of the parties, regarding the U.S. "tax treatment" ) as distinguished from a third party announcement or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purposeleak).
Appears in 2 contracts
Samples: Transaction Agreement (Affordable Residential Communities Inc), Transaction Agreement (Chateau Communities Inc)
Access to Information; Confidentiality. Subject to applicable lawLaw, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement pursuant to Section 7.01, upon reasonable notice, the Company shall, and shall cause its Subsidiaries shall to, afford to Parent and Parent, Merger Sub ’s Representatives and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") of Debt Financing reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and(other than any of the foregoing that relate to the negotiation and execution of this Agreement, during such periodthe process that led to the negotiation and execution of this Agreement or, subject to the disclosure requirements set forth in Section 5.02, to any Takeover Proposal) and the Company shall furnish promptly to Parent and Parent’s Representatives such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; providedprovided that Parent and its Representatives and sources of Debt Financing shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided further, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it if the Company determines, in its reasonable judgment (after consultation with its outside counsel), that doing so is reasonably believes it may not likely to (i) violate applicable Law, an applicable Judgment or a Contract or obligation of confidentiality owing to a third party (provided that the Company shall have used commercially reasonable efforts to obtain the consent of such third party to provide to Parent by reason such information), (ii) jeopardize the protection of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, attorney work product protection or which other legal privilege, or (iii) expose the Company to risk of liability for disclosure of sensitive or any Subsidiary is required personal information. All requests for information made pursuant to keep confidential this Section 5.06 shall be directed to the executive officer or other Person designated by reason of contractthe Company. Until the Effective Time, agreement all information provided (including information provided by the Company, its Subsidiaries or understanding with third parties; provided that, with respect its or their respective Representatives pursuant to any such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor Section 5.04(c)) will be subject to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractletter agreement dated as of December 9, as applicable. No investigation pursuant to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to 2015, by and between the obligations of Company and Apollo Management VIII, L.P. (the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Fresh Market, Inc.), Agreement and Plan of Merger (Fresh Market, Inc.)
Access to Information; Confidentiality. Subject to applicable lawLaws relating to the exchange of information, the Company and its Subsidiaries shall afford to Parent and Parent, Merger Sub ’s Representatives and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") of Debt Financing reasonable access during normal business hours upon reasonable notice throughout the period prior to the Effective Time to their respective Company’s officers, employees, agents, properties, books, contracts, commitments Contracts and records and, during such period, and the Company shall furnish promptly to Parent such information concerning its businessesbusiness, personnel, assets, liabilities and properties and personnel as Parent or Merger Sub shall may reasonably request; provided that Parent and its representatives shall conduct any such activities in such a manner as not to interfere unreasonably with the business or operations of the Company; provided, further however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required obligated to provide any such access or information which it reasonably believes it may not provide if the Company determines, in its reasonable judgment, that doing so would violate applicable Law or a Contract or obligation of confidentiality owing to Parent by reason a third-party, waive the protection of applicable law, rules or regulations, which constitutes information protected by an attorney/-client privilege, or which expose the Company to risk of liability for disclosure of sensitive or any Subsidiary personal information. Without limiting the foregoing, in the event that the Company does not provide access or information in reliance on the preceding sentence, it shall provide notice to Parent that it is required withholding such access or information and shall use its reasonable best efforts to keep confidential by reason communicate, to the extent feasible, the applicable information in a way that would not violate the applicable Law, Contract or obligation or risk waiver of contractsuch privilege. Without limiting the generality of this Section 5.7, agreement or understanding with third parties; provided that, with respect to any such informationfrom the date of this Agreement until the Effective Time, the Company shallwill furnish to the Parent promptly after becoming available, (i) monthly financial statements, including an unaudited balance sheet, income statement and statement of cash flows for each month through the Closing Date, as it may prepare for management’s internal use, and (ii) any update of its outlook for the quarter or shall cause the relevant Subsidiary tobalance of the fiscal year, provide as it may prepare for management’s internal use. Until the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulationEffective Time, the maintenance of that privilege or information provided will be subject to the terms of the relevant contractletter agreement, dated as applicable. No investigation pursuant of September 19, 2011, between the Company and Insight Venture Management LLC (as it may be amended from time to this Section 5.04(a) shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition to the obligations of the parties hereto. Notwithstanding anything herein to the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kindtime, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 1 contract
Access to Information; Confidentiality. Subject Upon reasonable notice, (1) the Company shall (and shall cause each of its Subsidiaries to) afford to applicable lawthe representatives, officers, directors, employees, agents, attorneys, accountants and financial advisors (“Representatives”) of Parent and the Debt Commitment Parties reasonable access, in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries shall afford to ParentSubsidiaries, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours and upon reasonable notice throughout the period prior to the Effective Time Time, to their respective the properties, booksemployees, contractsContracts, commitments books and records of the Company and its Subsidiaries and (2) the Company shall use reasonable best efforts to afford Parent and the Debt Commitment Parties reasonable access, in a manner not disruptive in any material respect to the operations of the business of the Company and its Subsidiaries, during normal business hours and upon reasonable notice throughout the period prior to the Effective Time, to the accountants of the Company, and, during such period, shall (and shall cause each of its Subsidiaries to) furnish promptly to such Representatives all information concerning its businessesthe business, properties and personnel of the Company and its Subsidiaries as may reasonably be requested and is reasonably available to the Company; provided, that nothing herein shall require the Company or any of its Subsidiaries to disclose any information to Parent or Merger Sub shall reasonably request; providedor any Debt Commitment Party if such disclosure would, however, such investigation shall not unreasonably disrupt in the reasonable judgment of the Company's operations. All nonpublic information provided to, (i) violate Applicable Law or obtained by, Parent, Merger Sub or the provisions of any such financing source in connection with the transactions contemplated hereby shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose such information as may be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvals. Notwithstanding the foregoing, the Company shall not be required agreement to provide any information which it reasonably believes it may not provide to Parent by reason of applicable law, rules or regulations, which constitutes information protected by attorney/client privilege, or which the Company or any Subsidiary of its Subsidiaries is required to keep confidential by reason of contracta party or (ii) jeopardize any attorney-client or other legal privilege; provided, agreement or understanding with third parties; provided further, that, with respect if the Company does not disclose information in reliance on clause (i) or (ii) of the preceding sentence, it shall provide notice to any Parent that it is withholding such informationinformation and shall use its commercially reasonable efforts to communicate, to the extent feasible, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that applicable information in a manner) way that is consistent with the applicable law, rule would not violate such Applicable Law or regulation, the maintenance of that privilege agreement or the terms of the relevant contract, as applicablejeopardize such privilege. No investigation or access permitted pursuant to this Section 5.04(a) 4.6 shall affect or be deemed to modify any representation or warranty in this made by the Company hereunder. The Confidentiality Agreement of any party hereto or any condition shall apply with respect to information furnished by the obligations of Company, its Subsidiaries and the parties heretoCompany’s officers, employees and other Representatives hereunder. Notwithstanding anything herein to the contrarycontrary herein or in the Confidentiality Agreement, the Confidentiality Agreement shall terminate automatically without any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation further action on the part of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) Person as of the transactions contemplated hereunder and all materials of Effective Time, including any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except provisions that purport to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date survive a termination of the public announcement of the transactions contemplated by this Confidentiality Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 1 contract
Access to Information; Confidentiality. Subject to Except if prohibited by any applicable lawLaw, the Company and its Subsidiaries shall afford to Parent and to Parent’s Representatives, Merger Sub and their financing sources and their respective accountants, counsel, financial advisors and other representatives (the "Parent Representatives") reasonable access during normal business hours upon reasonable notice throughout (under the period prior supervision of appropriate personnel and in a manner that does not unreasonably interfere with the normal operation of the business of the Company) during the Pre-Closing Period to the Effective Time to their respective its properties, booksbooks and records, contractsContracts and personnel, commitments and records and, during such period, the Company shall furnish furnish, as promptly as reasonably practicable, to Parent such information concerning its businessesbusiness, properties and personnel as Parent or Merger Sub shall may reasonably request; provided, however, such investigation shall not unreasonably disrupt the Company's operations. All nonpublic information provided to, or obtained by, Parent, Merger Sub or that any such financing source in connection with the transactions contemplated hereby access shall be "Confidential Information" for purposes of the Confidentiality Agreement dated February 19, 2003 between Parent afforded and the Company (the "Confidentiality Agreement"), the terms of which shall continue in force until the Effective Time; provided that Parent, Merger Sub and the Company may disclose any such information as may shall be necessary in connection with seeking the Parent Required Statutory Approvals and the Company Required Statutory Approvalsfurnished at Parent’s expense. Notwithstanding the foregoingimmediately preceding sentence, the Company shall not be required to provide afford access or furnish information to the extent (a) such information is subject to the terms of a confidentiality agreement with a third party entered into prior to the Agreement Date, (b) such information relates to the applicable portions of the minutes of the meetings of the Company Board (including any presentations or other materials prepared by or for the Company Board) where the Company Board discussed (i) the Transactions or alternative transactions considered by the Company Board, (ii) any Company Takeover Proposal or (iii) any Intervening Event, or (c) the Company determines in good faith after consulting with counsel that affording such access or furnishing such information which it reasonably believes it may not provide would jeopardize the attorney-client privilege of the Company, violate applicable Law or result in antitrust risk for the Company; provided that the Company will use its reasonable efforts to obtain any required consents for the disclosure of such information and take such other reasonable action (including entering into a joint defense agreement or similar arrangement to avoid loss of attorney-client privilege) with respect to such information as is necessary to permit disclosure to Parent by reason of applicable law, rules or regulations, which constitutes information protected by without jeopardizing such attorney/-client privilege, violating applicable Law or which the Company or any Subsidiary is required to keep confidential by reason of contract, agreement or understanding with third parties; provided that, with respect to any resulting in such information, the Company shall, or shall cause the relevant Subsidiary to, provide the maximum amount of that information (or shall endeavor to otherwise convey that information in a manner) that is consistent with the applicable law, rule or regulation, the maintenance of that privilege or the terms of the relevant contractantitrust risk, as applicable. No investigation All information exchanged pursuant to this Section 5.04(a) 7.01 shall affect or be deemed to modify any representation or warranty in this Agreement of any party hereto or any condition subject to the obligations of confidentiality letter agreement in effect between the parties hereto. Notwithstanding anything herein to Company and Parent, as amended (the contrary, any party to this Agreement (and each employee, representative, or other agent of such parties) may disclose to any and all persons, without limitation of any kind, the U.S. "tax treatment" or "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4) of the transactions contemplated hereunder and all materials of any kind (including opinions or other tax analysis, but without disclosure of identifying information or, except to the extent relating to such U.S. "tax treatment" or "tax structure," any non-public commercial or financial information) that are provided to such parties relating to such U.S. "tax treatment" and "tax structure" (in each case, within the meaning of Treasury Regulation section 1.6011-4“Confidentiality Agreement”); provided, that such disclosure may not be made until the earlier of (x) the date of public announcement of discussions relating to the transactions contemplated by this Agreement, (y) the date of the public announcement of the transactions contemplated by this Agreement, or (z) the date of execution of this Agreement. Moreover, notwithstanding anything herein to the contrary, there shall be no limitation on any party's ability to consult any tax adviser, whether or not independent from the parties, regarding the U.S. "tax treatment" or "tax structure" of the transactions contemplated by this Agreement. The intent of this provision is that the transactions contemplated by the Agreement are not treated as having been offered under conditions of confidentiality for purposes of Treasury Regulation section 1.6011-4(b)(3) and shall be construed in a manner consistent with such purpose.
Appears in 1 contract
Samples: Agreement and Plan of Merger (POINT Biopharma Global Inc.)
