ACQUIRED THE PURCHASED BUSINESS; PROVIDED, HOWEVER, THAT NOTHING SET FORTH
IN THIS SECTION 9.2 SHALL PROHIBIT THE BUYER BOARD FROM EXERCISING ITS FIDUCIARY
DUTIES IN ITS COMMUNICATIONS TO THE STOCKHOLDERS OF BUYER.
IN THE CASE OF
ANNOUNCEMENTS, STATEMENTS, ACKNOWLEDGMENTS OR REVELATIONS WHICH EITHER PARTY IS
REQUIRED BY LEGAL REQUIREMENT TO MAKE, ISSUE OR RELEASE, THE MAKING, ISSUING OR
RELEASING OF ANY SUCH ANNOUNCEMENT, STATEMENT, ACKNOWLEDGMENT OR REVELATION BY
THE PARTY SO REQUIRED TO DO SO BY LEGAL REQUIREMENT SHALL NOT CONSTITUTE A
BREACH OF THIS AGREEMENT IF SUCH PARTY SHALL HAVE GIVEN, TO THE EXTENT
REASONABLY PRACTICABLE, NOT LESS THAN TWO (2) CALENDAR DAYS PRIOR NOTICE TO THE
OTHER PARTY, AND SHALL HAVE ATTEMPTED, TO THE EXTENT REASONABLY POSSIBLE, TO
CLEAR SUCH ANNOUNCEMENT, STATEMENT, ACKNOWLEDGMENT OR REVELATION WITH THE OTHER
PARTY.
EACH PARTY HERETO AGREES THAT IT WILL NOT UNREASONABLY WITHHOLD ANY SUCH
CONSENT OR CLEARANCE.
IN FURTHERANCE OF THE FOREGOING, THE PARTIES ACKNOWLEDGE
AND AGREE THAT CONCURRENTLY WITH THE EXECUTION OF THIS AGREEMENT, THE PARTIES
WILL ISSUE A MUTUAL PRESS RELEASE WITH RESPECT TO THE TRANSACTIONS CONTEMPLATED
HEREBY.
9.3
CONFIDENTIAL INFORMATION.
BUYER AND SELLER ACKNOWLEDGE AND AGREE
AS FOLLOWS:
(A)
SUBJECT TO SECTION 9.2, THE PROVISIONS OF THE CONFIDENTIALITY
AGREEMENT SHALL CONTINUE TO BE IN EFFECT UNTIL THE CLOSING, AT WHICH TIME (I)
THE CONFIDENTIALITY AGREEMENT SHALL TERMINATE AND BE OF NO FURTHER EFFECT AND
(II) THE CONDITIONS SET FORTH IN THIS SECTION 9.3 SHALL THEREAFTER APPLY.
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(B)
SELLER AND BUYER ACKNOWLEDGE THAT THE SUCCESS OF THE PURCHASED
BUSINESS AND THE RETAINED BUSINESS AFTER THE CLOSING DEPENDS UPON THE CONTINUED
PRESERVATION OF THE CONFIDENTIALITY OF CERTAIN CONFIDENTIAL AND PROPRIETARY
INFORMATION RELATED TO SELLER, THE PURCHASED BUSINESS AND THE PURCHASED ASSETS,
AND THE RETAINED BUSINESS AND THE EXCLUDED ASSETS (AS THE CASE MAY BE) IN EACH
CASE, INCLUDING WITHOUT LIMITATION TECHNICAL OR MARKETING INFORMATION, IDEAS,
METHODS, DEVELOPMENTS, INVENTIONS, IMPROVEMENTS, BUSINESS PLANS, TRADE SECRETS,
SCIENTIFIC OR STATISTICAL DATA, DIAGRAMS, DRAWINGS, SPECIFICATIONS OR OTHER
PROPRIETARY INFORMATION RELATED THERETO, TOGETHER WITH ALL ANALYSES,
COMPILATIONS, STUDIES OR OTHER DOCUMENTS, RECORDS OR DATA POSSESSED BY SELLER
AND ITS AFFILIATES ("CONFIDENTIAL INFORMATION"), THAT THE PRESERVATION OF THE
CONFIDENTIALITY OF SUCH CONFIDENTIAL INFORMATION BY SELLER, BUYER AND THEIR
RESPECTIVE AFFILIATES IS AN ESSENTIAL PREMISE OF THE BARGAIN BETWEEN SELLER AND
BUYER.
ACCORDINGLY, SELLER AND BUYER HEREBY AGREE THAT:
(I)
SELLER AND ITS AFFILIATES WILL NOT, AND SELLER WILL CAUSE ITS
AFFILIATES AND ITS REPRESENTATIVES NOT TO, AT ANY TIME, DIRECTLY OR INDIRECTLY,
WITHOUT THE PRIOR WRITTEN CONSENT OF BUYER, DISCLOSE OR USE, ANY CONFIDENTIAL
INFORMATION INVOLVING OR RELATING TO THE PURCHASED BUSINESS OR THE PURCHASED
ASSETS, EXCEPT (A) FOR ANY INFORMATION THAT PRIOR TO THE CLOSING WAS PRIMARILY
USED IN THE RETAINED BUSINESS OR (B) TO THE EXTENT NECESSARY FOR SELLER TO
OPERATE AND CONDUCT THE RETAINED BUSINESS AND PROVIDE THE SERVICES UNDER THE
ANCILLARY AGREEMENTS FOLLOWING THE CLOSING;
(II)
BUYER AND ITS AFFILIATES WILL NOT, AND BUYER WILL CAUSE ITS
AFFILIATES AND ITS REPRESENTATIVES NOT TO, AT ANY TIME, DIRECTLY OR INDIRECTLY,
WITHOUT THE