PREPARATION OF ALL FINANCIAL STATEMENTS REASONABLY DETERMINED BY PURCHASER
TO BE NECESSARY TO MEET ITS FINANCIAL REPORTING AND TAX OBLIGATIONS IN
CONNECTION WITH THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
SELLER SHALL PROVIDE PURCHASER WITH ANY RECORDS AND OTHER INFORMATION IN
SELLER'S POSSESSION OR CONTROL AS SHALL BE REASONABLY REQUESTED BY PURCHASER IN
CONNECTION THEREWITH AND SHALL USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE TO
BE PROVIDED TO PURCHASER ANY RECORDS AND OTHER INFORMATION THAT IS NOT IN THE
POSSESSION OR CONTROL OF SELLER AS SHALL BE REASONABLY REQUESTED BY PURCHASER IN
CONNECTION THEREWITH AND SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE
PURCHASER WITH ACCESS TO SELLER'S ACCOUNTANTS.
Section 4.4
Post-Technology Closing Receipts.
Seller shall hold in
trust for, and promptly remit to Purchaser without deduction, any amounts
collected or received by Seller that relate to the Business or Purchaser
following the Technology Closing.
Purchaser shall hold in trust for, and
promptly remit to Seller without deduction, any amounts collected or received by
Purchaser that either constitute accounts receivable related to Product sold by
Seller prior to the Technology Closing Date or that do not relate to the
Transferred Assets.
SECTION 4.5
CONFIDENTIALITY.
SELLER WILL MAINTAIN CONFIDENTIAL ALL
INFORMATION RELATED TO THE BUSINESS, THE PRODUCT AND THE TRANSFERRED ASSETS
INCLUDING, WITHOUT LIMITATION, BUSINESS PLANS AND PROPOSALS, MARKETING
STRATEGIES, STANDARD OPERATING PROCEDURES, PERSONNEL DATA, PRICING, INTELLECTUAL
PROPERTY AND ALL OTHER INFORMATION THAT WOULD BE CONSIDERED CONFIDENTIAL AND
PROPRIETARY ("CONFIDENTIAL INFORMATION").
(B)
FOR A PERIOD OF FIVE (5) YEARS FROM THE TECHNOLOGY CLOSING DATE,
SELLER WILL TREAT ALL CONFIDENTIAL INFORMATION WITH THE SAME DEGREE OF CARE THAT
IT EMPLOYS WITH RESPECT TO ITS OWN CONFIDENTIAL INFORMATION WHICH IT DOES NOT
DESIRE TO HAVE PUBLISHED OR DISSEMINATED.
IN NO EVENT WILL THAT DEGREE OF CARE
BE LESS THAN THAT EMPLOYED BY A REASONABLE PERSON.
NOTWITHSTANDING THE
FOREGOING, SELLER SHALL HAVE NO SUCH OBLIGATION WITH RESPECT TO THAT PORTION OF
THE CONFIDENTIAL INFORMATION THAT SELLER CAN DEMONSTRATE IS (I) IN THE PUBLIC
DOMAIN OR ENTERS THE PUBLIC DOMAIN WITHOUT THE WRONGFUL ACT OR BREACH OF THIS
AGREEMENT BY SELLER, (II) APPROVED IN ADVANCE IN
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WRITING BY PURCHASER FOR RELEASE BY SELLER OR (III) DISCLOSED BY ORDER OF A
COURT OF COMPETENT JURISDICTION, PROVIDED THAT SUCH DISCLOSURE IS SUBJECT TO ALL
APPLICABLE GOVERNMENTAL OR JUDICIAL PROTECTION FOR LIKE MATERIAL AND REASONABLE
ADVANCE NOTICE IS GIVE BY SELLER TO PURCHASER.
The fact that Confidential Information may be in or becomes part of the public
domain, in and of itself, does not exclude any specific information from
obligations of this Agreement.
Section 4.6
No Other Bids.
(A)
UNTIL THE EARLIER TO OCCUR OF (A) THE MANUFACTURING CLOSING OR
(B) THE EARLIER TERMINATION OF THIS AGREEMENT PURSUANT TO ITS TERMS, NEITHER
SELLER NOR ANY OF SELLER'S OFFICERS, MANAGERS, EMPLOYEES, AGENTS OR OTHER
REPRESENTATIVES SHALL, DIRECTLY OR INDIRECTLY, (I) INITIATE, SOLICIT, ENTERTAIN
OR ENCOURAGE (INCLUDING BY WAY OF FURNISHING INFORMATION REGARDING THE
TRANSFERRED ASSETS) ANY ASSET ACQUISITION PROPOSAL, OR MAKE ANY STATEMENTS TO
THIRD PARTIES WHICH MAY REASONABLY