Attn. : Paul Bekx, Fax : +.05.18, (ii) Gilde Buy-Out Partners BV,
Attn. : Paul Bekx, Fax : +.30 and (iii) White & Case LLP, Attn:
François Leloup, Fax: +4.15.16.
9.4
TERMINATION
9.4.1
TERMINATION EVENTS
This Agreement may be terminated:
(A)
BY ANY PARTY BY MUTUAL CONSENT OF THE SELLERS AND THE
PURCHASER;
(B)
BY EITHER PARTY IN ACCORDANCE WITH AND SUBJECT TO ARTICLE
5.5;
(C)
BY EITHER THE PURCHASER OR THE SELLERS, BY GIVING WRITTEN
NOTICE OF SUCH TERMINATION TO THE OTHER PARTY (PROVIDED THAT THE TERMINATING
PARTY IS NOT IN MATERIAL BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT) IF THE
CLOSING SHALL NOT HAVE OCCURRED ON OR BEFORE (I) DECEMBER 31, 2006 OR (II)
JANUARY 31, 2007, SHOULD THE CLOSING HAS NOT OCCURRED ON OR BEFORE DECEMBER 31,
2006 AS A RESULT OF (A) THE NON SATISFACTION OF THE CONDITIONS PRECEDENT
REFERRED TO IN ARTICLE 4.2.1 OF THIS AGREEMENT FOR EXTERNAL REASONS OUTSIDE THE
32
PURCHASER'S EXCLUSIVE CONTROL OR (B) THE NON
OCCURRENCE OF THE CLOSING AS A RESULT OF THE LACK OF ABILITY OF THE FINANCING
BANKS TO PERFORM THE NECESSARY FUNDS FLOWS AT CLOSING DUE TO THE SHUTDOWN OF THE
FINANCING BANKS BACK OFFICES BETWEEN DECEMBER 25, 2006 AND DECEMBER 31, 2006
((I) OR (II) BEING REFERRED TO AS THE "TERMINATION DATE");
(D)
BY THE PURCHASER IN CASE OF A MATERIAL BREACH AS PROVIDED IN
ARTICLE 6.5.1 (I) (B) OF THIS AGREEMENT; AND/OR
(e)
by the Sellers or the Purchaser in case of
the occurrence of a Material New Event as described in Article 8.1.4(a) of this
Agreement.
9.4.2
EFFECT OF TERMINATION
The right to terminate this Agreement pursuant to this Article 9.4, does not
prevent Parties to rely on other rights and remedies granted by this Agreement.
If this Agreement is terminated pursuant to this Article 9.4 all further
obligations of the Parties under this Agreement shall terminate, except that the
obligations set out in Articles 9.5 (Confidentiality and Public Disclosure), 9.1
(Expenses), 9.12 (Governing Law) and 9.13 (Jurisdiction) shall survive.
9.5
CONFIDENTIALITY AND PUBLIC DISCLOSURE
9.5.1
THE PARTIES SHALL TREAT AS CONFIDENTIAL AND SHALL
NOT DISCLOSE THE PROVISIONS OF THIS AGREEMENT AND ANY AGREEMENT ENTERED INTO
PURSUANT TO THIS AGREEMENT SAVE WHERE OTHERWISE EXPRESSLY PERMITTED BY ANOTHER
AGREEMENT ENTERED INTO BETWEEN THE PARTIES.
PRIOR TO THE CLOSING DATE, THE
PURCHASER SHALL TREAT AS CONFIDENTIAL AND NOT DISCLOSE OR USE INFORMATION
RECEIVED OR OBTAINED IN RESPECT OF THE SELLERS, THE COMPANY AND ANY OTHER
NOVASEP GROUP COMPANY, EXCEPT TO THE BENEFIT OF ITS FINANCE PROVIDERS AND
PROSPECTIVE CO-INVESTORS IN RESPECT OF THE ACQUISITION CONTEMPLATED HEREIN, AND
THE SELLERS SHALL TREAT AS CONFIDENTIAL AND NOT DISCLOSE OR USE INFORMATION
RECEIVED OR OBTAINED IN RESPECT OF THE PURCHASER.
FOLLOWING THE CLOSING DATE,
THE SELLERS SHALL NOT AND SHALL CAUSE THEIR AFFILIATES NOT TO, COMMUNICATE OR
DIVULGE TO ANY PERSON AND/OR MAKE USE OR PERMIT THE USE OF ANY CONFIDENTIAL
INFORMATION CONCERNING THE COMPANY AND ITS BUSINESS.
NOTWITHSTANDING THE
FOREGOING, EACH PARTY MAY DISCLOSE OR USE CONFIDENTIAL