THE BONA FIDE SETTLEMENT OFFER FOR WHICH THE INDEMNIFYING PERSON COULD HAVE
SETTLED SUCH CLAIM.
9.5
PAYMENT OF INDEMNIFICATION.
CLAIMS OF INDEMNIFICATION
UNDER THIS ARTICLE WILL BE PAID OR OTHERWISE SATISFIED BY THE INDEMNIFYING
PERSON WITHIN THIRTY (30) DAYS AFTER NOTICE THEREOF IS GIVEN BY THE INDEMNIFIED
PERSON AND AFTER THE PARTIES AGREE ON THE ALLOCATION OF RESPONSIBILITY FOR THE
ITEMS UNDERLYING THOSE CLAIMS OF INDEMNIFICATION.
UNLESS THE PARTY RECEIVING A
CLAIM OF INDEMNIFICATION OBJECTS WITHIN FIFTEEN (15) DAYS TO THE AMOUNT OR
ALLOCATION, IT WILL BE DEEMED TO HAVE AGREED ON THE ALLOCATION REPRESENTED BY
THE CLAIM OF INDEMNIFICATION.
PAYMENTS MADE AFTER THE DUE DATE WILL BEAR
INTEREST AT AN ANNUAL RATE EQUAL TO THE PRIME RATE AS PUBLISHED IN THE WALL
STREET JOURNAL AS OF THE 30TH DAY FOLLOWING SUCH NOTICE PLUS FIVE PERCENT (5%),
OR THE MAXIMUM ALLOWED BY LAW, IF LESS, BUT NOT TO EXCEED TWELVE PERCENT (12%),
IN EACH CASE ON THAT PORTION OF THE CLAIM THAT REPRESENTS ACTUAL OUT OF POCKET
EXPENSES PAID BY THE INDEMNIFIED PERSON (IF ANY).
32
ARTICLE X
CONFIDENTIALITY
10.1
CONFIDENTIALITY.
(A)
"CONFIDENTIAL INFORMATION" MEANS, EXCEPT AS
PROVIDED BELOW, CONFIDENTIAL AND PROPRIETARY INFORMATION OF A PARTY AND ITS
AFFILIATES, WHETHER IN WRITTEN, PRINTED, VERBAL OR ELECTRONIC FORM, AND WHETHER
DISCLOSED BEFORE OR AFTER THE ORIGINAL EFFECTIVE DATE, INCLUDING RESEARCH AND
DEVELOPMENT ACTIVITIES, PRODUCT DESIGN DETAILS AND SPECIFICATIONS, MOLECULAR
STRUCTURES, TECHNOLOGY AND KNOW-HOW, SALES AND MARKETING PLANS, FINANCES AND
BUSINESS FORECASTS, PROCUREMENT REQUIREMENTS AND VENDOR INFORMATION, CUSTOMER
LISTS, PERSONNEL INFORMATION AND STRATEGIC PLANS. CONFIDENTIAL INFORMATION WILL
NOT INCLUDE INFORMATION THAT: (I) IS NOW, OR HEREAFTER BECOMES GENERALLY KNOWN
OR AVAILABLE TO THE PUBLIC THROUGH NO ACT OR FAILURE TO ACT ON THE PART OF THE
RECEIVING PARTY; (II) WAS ACQUIRED BY THE RECEIVING PARTY BEFORE RECEIVING SUCH
INFORMATION FROM THE DISCLOSING PARTY THROUGH NO BREACH OF ANY DUTY OF
CONFIDENTIALITY OWED TO THE DISCLOSING PARTY AND WITHOUT RESTRICTION AS TO USE
OR DISCLOSURE; (III) IS HEREAFTER RIGHTFULLY FURNISHED TO THE RECEIVING PARTY BY
A THIRD PARTY WITHOUT ANY BREACH OF ANY DUTY OF CONFIDENTIALITY OWED TO THE
DISCLOSING PARTY AND WITHOUT RESTRICTION AS TO USE OR DISCLOSURE; OR (IV) IS
INFORMATION THAT THE RECEIVING PARTY CAN DOCUMENT WAS INDEPENDENTLY DEVELOPED BY
THE RECEIVING PARTY WITHOUT USE OF THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION.
(B)
EACH PARTY, WHEN IT IS THE RECEIVING PARTY
AGREES: (I) TO HOLD THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION IN STRICT
CONFIDENCE AND NOT TO DISCLOSE SUCH CONFIDENTIAL INFORMATION TO ANY OTHER PERSON
OR ENTITY WITHOUT THE PRIOR WRITTEN CONSENT OF THE DISCLOSING PARTY; (II) NOT TO
USE, AT ANY TIME FOLLOWING THE EXECUTION OF THE ORIGINAL AGREEMENT, ANY
CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY FOR ITS OWN BENEFIT OR FOR THE
BENEFIT OF ANY OTHER PERSON OR ENTITY FOR ANY PURPOSE OTHER THAN FOR THE EXPRESS
PURPOSES PERMITTED UNDER THE ORIGINAL AGREEMENT AND THIS RESTATED AGREEMENT; AND
(III) TO LIMIT THE DISCLOSURE OF CONFIDENTIAL INFORMATION TO PERMITTED PERSONS.
FOR PURPOSES HEREOF, THE TERM "PERMITTED PERSON" SHALL MEAN THE