WITH
THE SPECIFIC PRIOR WRITTEN CONSENT OF BUYER, SHALL NOT DISCLOSE SUCH
CONFIDENTIAL INFORMATION TO ANY PERSON EXCEPT (I) THE DIRECTORS, OFFICERS,
EMPLOYEES, AFFILIATES, ACCOUNTANTS (INCLUDING INDEPENDENT CERTIFIED PUBLIC
ACCOUNTANTS), ADVISORS, ATTORNEYS, CONSULTANTS OR OTHER AGENTS (COLLECTIVELY,
"REPRESENTATIVES") OF BUYER AND (II) ITS OWN REPRESENTATIVES, PROVIDED THAT
THOSE REPRESENTATIVES AGREE TO THE CONFIDENTIALITY PROVISIONS OF THIS
SECTION 9.3; PROVIDED, HOWEVER, THAT CONFIDENTIAL INFORMATION SHALL NOT INCLUDE
SUCH INFORMATION AS (A) BECOMES KNOWN TO THE PUBLIC GENERALLY THROUGH NO FAULT
OF SELLER OR (B) IS REQUIRED TO BE DISCLOSED BY LAW OR THE ORDER OF ANY
GOVERNMENTAL BODY UNDER COLOR OF LAW, PROVIDED, THAT PRIOR TO DISCLOSING ANY
INFORMATION PURSUANT TO THIS CLAUSE (B), SELLER SHALL, IF POSSIBLE, GIVE PRIOR
WRITTEN NOTICE THEREOF TO BUYER AND PROVIDE BUYER WITH THE OPPORTUNITY TO
CONTEST THAT DISCLOSURE.
"CONFIDENTIAL INFORMATION" MEANS, WITH RESPECT TO ANY
PERSON, ALL TRADE SECRETS, KNOW HOW AND OTHER CONFIDENTIAL, NONPUBLIC AND/OR
PROPRIETARY INFORMATION OF THAT PERSON, INCLUDING ANY SUCH INFORMATION DERIVED
FROM REPORTS, INVESTIGATIONS, RESEARCH, STUDIES, WORK IN PROGRESS, CODES,
MARKETING, SALES OR SERVICE PROGRAMS, CUSTOMER LISTS, RECORDS RELATING TO PAST
SERVICE PROVIDED TO CUSTOMERS, CAPITAL EXPENDITURE PROJECTS, COST SUMMARIES,
EQUIPMENT OR PRODUCTION SYSTEM DESIGNS OR DRAWINGS, PRICING FORMULAE, CONTRACT
ANALYSES, FINANCIAL INFORMATION, PROJECTIONS, PRESENT AND FUTURE BUSINESS PLANS,
AGREEMENTS WITH VENDORS, JOINT VENTURE AGREEMENTS, CONFIDENTIAL FILINGS WITH ANY
GOVERNMENTAL BODY AND ALL OTHER CONFIDENTIAL, NONPUBLIC CONCEPTS, METHODS,
TECHNIQUES OR PROCESSES OF DOING BUSINESS, IDEAS, MATERIALS OR INFORMATION
PREPARED OR PERFORMED FOR, BY OR ON BEHALF OF THAT PERSON.
(B)
BECAUSE OF (I) THE DIFFICULTY OF MEASURING ECONOMIC LOSSES AS
A RESULT OF THE BREACH OF THE COVENANTS IN SECTION 9.3(A) AND (II) THE IMMEDIATE
AND IRREPARABLE DAMAGE THAT WOULD BE CAUSED TO BUYER FOR WHICH IT WOULD HAVE NO
OTHER ADEQUATE REMEDY, IN THE EVENT OF A BREACH OR THREATENED BREACH BY SELLER
OF THE PROVISIONS OF THIS SECTION 9.3 WITH RESPECT TO ANY CONFIDENTIAL
INFORMATION, BUYER SHALL BE ENTITLED TO AN INJUNCTION RESTRAINING SELLER FROM
46
DISCLOSING, IN WHOLE OR IN PART, THAT CONFIDENTIAL INFORMATION.
NOTHING HEREIN
SHALL BE CONSTRUED AS PROHIBITING BUYER FROM PURSUING ANY OTHER AVAILABLE REMEDY
FOR SUCH BREACH OR THREATENED BREACH, INCLUDING THE RECOVERY OF DAMAGES.
SECTION 9.4
EXPENSES.
EXCEPT AS OTHERWISE
PROVIDED IN THIS AGREEMENT, BUYER AND SELLER SHALL PAY THEIR OWN RESPECTIVE FEES
AND EXPENSES INCURRED IN CONNECTION WITH THE NEGOTIATION, PREPARATION AND
EXECUTION OF THIS AGREEMENT (INCLUDING THE EXHIBITS AND SCHEDULES HERETO) AND
THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN, INCLUDING
ALL LEGAL, ACCOUNTING, TAX, BROKERS' AND OTHER ADVISORS' FEES AND EXPENSES.
BUYER WILL PAY THE FILING FEE UNDER THE HSR ACT AND ALL EXPENSES OF OBTAINING
THE FINANCIAL STATEMENTS CONTEMPLATED UNDER SECTION 7.1(F) AND ALL COSTS AND
EXPENSES (INCLUDING VESSEL DOCUMENTATION EXPENSES) NECESSARY TO EFFECT THE
PRE-CLOSING MERGER.
SECTION 9.5
ENTIRE AGREEMENT.
THIS
AGREEMENT, INCLUDING ALL SCHEDULES AND EXHIBITS HERETO, CONSTITUTES THE ENTIRE
AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF.
THIS
AGREEMENT MAY NOT BE MODIFIED, AMENDED OR TERMINATED EXCEPT BY A