FEES) INCURRED BY THE PREVAILING
PARTY, INCLUDING ANY COSTS AND EXPENSES INCURRED IN CONNECTION WITH ANY
CHALLENGE TO THE JURISDICTION OR THE CONVENIENCE OR PROPRIETY OF VENUE OF
PROCEEDINGS BEFORE ANY STATE OR FEDERAL COURT LOCATED IN NEW YORK, NEW YORK.
9.10
Expenses.
Except as otherwise set forth in this Agreement
(including below) or in any other written agreement among the Parties, whether
or not the transactions contemplated by this Agreement are consummated, all
legal and other costs and expenses incurred by each respective Party in
connection with this Agreement and the transactions contemplated hereby shall be
paid by such respective Party, provided that the following costs shall be shared
equally by each Party:
(a)
Deloitte & Touche LLP's technology assessment and
business valuation analysis, (b) legal fees to the law firm of Wachtell, Lipton,
Rosen & Katz, and (c) any associated HSR filing fees.
9.11
Confidentiality.
(A)
EACH PARTY AGREES THAT FROM THE DATE OF THIS AGREEMENT UNTIL THE
THIRD ANNIVERSARY OF THE EARLIER OF THE TERMINATION OR THE CLOSING OF THIS
AGREEMENT, (I) IT SHALL USE AND CAUSE ITS AFFILIATES TO USE THE SAME DEGREE OF
CARE IT USES TO SAFEGUARD ITS OWN CONFIDENTIAL INFORMATION (AS DEFINED BELOW)
AND TO CAUSE ITS AND ITS AFFILIATES' DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND
REPRESENTATIVES TO KEEP CONFIDENTIAL ALL CONFIDENTIAL INFORMATION, INCLUDING BUT
NOT LIMITED TO INTELLECTUAL PROPERTY AND OTHER PROPRIETARY INFORMATION, OF THE
OTHER PARTY AND THE COMPANY, AND (II) IT SHALL HOLD AND SHALL CAUSE ITS
AFFILIATES TO HOLD AND SHALL CAUSE ITS AND ITS AFFILIATES' DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS AND REPRESENTATIVES TO HOLD IN CONFIDENCE, UNLESS COMPELLED TO
DISCLOSE BY JUDICIAL OR ADMINISTRATIVE PROCESS OR, IN THE OPINION OF COUNSEL, BY
THE REQUIREMENTS OF LAW, ALL DOCUMENTS AND INFORMATION CONCERNING ANY OTHER
PARTY HERETO FURNISHED IT BY SUCH OTHER PARTY OR ITS REPRESENTATIVES IN
CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT (TOGETHER WITH
THE INFORMATION REFERRED TO IN CLAUSE (I) ABOVE, THE "CONFIDENTIAL
INFORMATION"), EXCEPT TO THE EXTENT THAT ANY SUCH INFORMATION CAN BE SHOWN TO
HAVE BEEN (A) PREVIOUSLY KNOWN BY THE PARTY TO WHICH IT IS FURNISHED LAWFULLY
AND WITHOUT BREACHING OR HAVING BREACHED AN OBLIGATION OF SUCH PARTY OR THE
DISCLOSING PARTY TO KEEP SUCH DOCUMENTS AND INFORMATION CONFIDENTIAL, (B) IN THE
PUBLIC DOMAIN THROUGH NO FAULT OF THE DISCLOSING PARTY, OR (C) INDEPENDENTLY
DEVELOPED BY THE DISCLOSING PARTY WITHOUT USING OR HAVING USED THE CONFIDENTIAL
INFORMATION.
(B)
FROM THE CLOSING DATE UNTIL THE THIRD ANNIVERSARY THEREOF, THE
COMPANY WILL PRESERVE THE CONFIDENTIALITY OF ALL CONFIDENTIAL INFORMATION
SUPPLIED BY THE PARTIES AND THEIR AFFILIATES ("PARTY INFORMATION") TO THE SAME
EXTENT THAT A PARTY MUST PRESERVE THE CONFIDENTIALITY OF CONFIDENTIAL
INFORMATION PURSUANT TO SECTIONS 9.11(A).
(C)
FROM THE CLOSING DATE UNTIL THE THIRD ANNIVERSARY THEREOF, PARTY
INFORMATION WILL NOT BE SUPPLIED BY THE COMPANY OR ITS SUBSIDIARIES TO ANY
PERSON WHO IS NOT AN EMPLOYEE OF THE COMPANY, INCLUDING ANY EMPLOYEE OF A PARTY
OR ANY MEMBER OF THE BOARD WHO IS NOT AN EMPLOYEE OF