HAS BEEN RENDERED.
(L)
SPECIFIC PERFORMANCE; ENFORCEMENT OF ARBITRATION AWARD.
IN THE
EVENT OF ANY BREACH BY A PARTY OF THE TERMS OF THIS AGREEMENT WHICH WOULD CAUSE
ANY NONBREACHING PARTY TO BE IRREPARABLY HARMED OR FOR WHICH SUCH NONBREACHING
PARTY COULD NOT BE MADE WHOLE BY MONETARY DAMAGES, THEN IN SUCH CIRCUMSTANCES
SUCH NONBREACHING PARTY, IN ADDITION TO ANY OTHER REMEDY TO WHICH IT MAY BE
ENTITLED AT LAW OR IN EQUITY, SHALL BE ENTITLED TO COMPEL SPECIFIC PERFORMANCE
OF THIS AGREEMENT IN ANY ACTION INSTITUTED PURSUANT TO THIS SECTION 10.2 AND IN
ANY ACTION INSTITUTED IN ANY COURT OF APPLICABLE JURISDICTION TO ENFORCE ANY
INTERIM OR FINAL ARBITRATION AWARD RENDERED PURSUANT TO THIS SECTION 10.2.
(M)
WAIVER OF JURY TRIAL.
EACH PARTY EXPRESSLY WAIVES ITS RIGHT TO
TRIAL BY JURY IN ANY SUIT OR PROCEEDING RELATING TO OR ARISING FROM THIS
AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
EACH PARTY ACKNOWLEDGES THAT THIS
WAIVER IS A MATERIAL INDUCEMENT TO ENTER THIS AGREEMENT AND EACH PARTY
REPRESENTS THAT IT IS KNOWINGLY AND VOLUNTARILY WAIVING ITS JURY TRIAL RIGHT
AFTER CONSULTATION WITH LEGAL COUNSEL.
SECTION 10.3
CONFIDENTIALITY.
(A)
EACH SELLER PARTY ACKNOWLEDGES THAT IT HAS OR MAY HAVE HAD IN THE
PAST, CURRENTLY HAS AND IN THE FUTURE MAY HAVE ACCESS TO CONFIDENTIAL
INFORMATION (AS DEFINED BELOW) OF THE SUBJECT COMPANIES, BUYER AND THE
PARTNERSHIP.
DURING THE PERIOD PRIOR TO CLOSING, THE PARTIES AGREE TO ABIDE BY
THE CONFIDENTIALITY PROVISIONS IN PARAGRAPH 10 OF THE LETTER OF INTENT DATED
JANUARY 25, 2007 BETWEEN K-SEA OPERATING PARTNERSHIP L.P. AND THE SELLER PARTIES
(AND THAT THE SELLER PARTIES WILL BE BOUND BY SUCH PARAGRAPH AS IF IT APPLIED TO
THEM MUTATIS MUTANDIS).
FROM AND AFTER THE CLOSING, EACH SELLER PARTY AGREES
THAT IT SHALL KEEP CONFIDENTIAL ALL SUCH CONFIDENTIAL INFORMATION AND, EXCEPT
WITH THE SPECIFIC PRIOR WRITTEN CONSENT OF BUYER, SHALL NOT DISCLOSE SUCH
CONFIDENTIAL INFORMATION TO ANY PERSON EXCEPT (I) THE DIRECTORS, OFFICERS,
EMPLOYEES, AFFILIATES, ACCOUNTANTS (INCLUDING INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS), ADVISORS, ATTORNEYS, CONSULTANTS OR OTHER AGENTS (COLLECTIVELY,
"REPRESENTATIVES") OF BUYER AND (II) ITS OWN REPRESENTATIVES, PROVIDED THAT
THOSE REPRESENTATIVES AGREE TO THE CONFIDENTIALITY PROVISIONS OF THIS SECTION
10.3.
"CONFIDENTIAL INFORMATION" MEANS, WITH RESPECT TO ANY PERSON, ALL TRADE
SECRETS, KNOW HOW AND OTHER CONFIDENTIAL, NONPUBLIC AND/OR PROPRIETARY
INFORMATION OF
54
THAT PERSON, INCLUDING ANY SUCH INFORMATION DERIVED FROM REPORTS,
INVESTIGATIONS, RESEARCH, STUDIES, WORK IN PROGRESS, CODES, MARKETING, SALES OR
SERVICE PROGRAMS, CUSTOMER LISTS, RECORDS RELATING TO PAST SERVICE PROVIDED TO
CUSTOMERS, CAPITAL EXPENDITURE PROJECTS, COST SUMMARIES, EQUIPMENT OR PRODUCTION
SYSTEM DESIGNS OR DRAWINGS, PRICING FORMULAE, CONTRACT ANALYSES, FINANCIAL
INFORMATION, PROJECTIONS, PRESENT AND FUTURE BUSINESS PLANS, AGREEMENTS WITH
VENDORS, JOINT VENTURE AGREEMENTS, CONFIDENTIAL FILINGS WITH ANY GOVERNMENTAL
BODY AND ALL OTHER CONFIDENTIAL, NONPUBLIC CONCEPTS, METHODS, TECHNIQUES OR
PROCESSES OF DOING BUSINESS, IDEAS, MATERIALS OR INFORMATION PREPARED OR
PERFORMED FOR, BY OR ON BEHALF OF THAT PERSON; PROVIDED, HOWEVER, THAT
CONFIDENTIAL INFORMATION SHALL NOT INCLUDE SUCH INFORMATION AS (A) BECOMES KNOWN
TO THE PUBLIC GENERALLY THROUGH NO FAULT OF SUCH SELLER PARTY