REPRESENTATIVES OF PARENT OR SELLER SHALL MAINTAIN IN CONFIDENCE
AND NOT USE OR DISCLOSE TO ANY THIRD PARTY ANY CONFIDENTIAL OR PROPRIETARY
INFORMATION REGARDING THE BUSINESS OPERATIONS, PRODUCT FORMULATIONS, INGREDIENTS
OR PROCESSES, TECHNICAL KNOW-HOW OR DATA, SPECIFICATIONS, FINANCES OR OTHER
BUSINESS MATTERS OF SELLER WHICH INFORMATION CONSTITUTES ANY PART OF THE
PURCHASED ASSETS; PROVIDED, THAT NOTHING IN THIS SECTION 5.6(D) SHALL APPLY TO
INFORMATION THAT (I) IS IN THE PUBLIC DOMAIN, (II) IS INDEPENDENTLY DEVELOPED BY
SUCH PERSON AFTER THE CLOSING, OR (III) IS DISCLOSED TO THE RECIPIENT BY A THIRD
PARTY WHICH HAS NO DUTY OF CONFIDENTIALITY TO PURCHASER OR ITS AFFILIATES.
UPON
DISCOVERY BY PARENT, SELLER OR ANY OF THEIR RESPECTIVE REPRESENTATIVES THAT SUCH
PERSON IS IN POSSESSION OF ANY SUCH CONFIDENTIAL OR PROPRIETARY INFORMATION,
SUCH PERSON SHALL PROMPTLY RETURN ALL SUCH INFORMATION TO PURCHASER, WITHOUT
RETAINING ANY COPIES THEREOF EXCEPT FOR COPIES THAT SUCH PERSON IS REQUIRED TO
RETAIN BY APPLICABLE LAW.
PARENT AND SELLER SHALL BE RESPONSIBLE FOR ENSURING
THE COMPLIANCE OF THEIR RESPECTIVE REPRESENTATIVES WITH THE OBLIGATIONS IN THIS
SECTION 5.6(D).
IF PARENT, SELLER OR THEIR RESPECTIVE REPRESENTATIVES RECEIVE A
REQUEST OR ARE REQUIRED (BY DEPOSITION, INTERROGATORY, REQUEST FOR DOCUMENTS,
SUBPOENA, CIVIL INVESTIGATIVE DEMAND OR SIMILAR PROCESS) TO DISCLOSE ALL OR ANY
PART OF SUCH CONFIDENTIAL OR PROPRIETARY INFORMATION, PARENT AND SELLER, AS THE
CASE MAY BE, AGREE TO, OR WILL ENSURE THAT THEIR RESPECTIVE REPRESENTATIVES,
PROMPTLY NOTIFY PURCHASER OF THE EXISTENCE, TERMS AND CIRCUMSTANCES SURROUNDING
SUCH REQUEST SO THAT PURCHASER MAY SEEK A PROTECTIVE ORDER OR OTHER APPROPRIATE
REMEDY.
(D)
NOTWITHSTANDING ANY PROVISION HEREIN TO THE
CONTRARY, EACH PARTY AND EACH OF THE RESPECTIVE EMPLOYEES, REPRESENTATIVES AND
AGENTS OF EACH PARTY ARE HEREBY EXPRESSLY
37
AUTHORIZED TO DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND,
THE TAX TREATMENT AND ANY FACTS THAT MAY BE RELEVANT TO THE TAX STRUCTURE OF THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE TRANSACTION DOCUMENTS,
PROVIDED THAT THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT SHALL CONTINUE TO
APPLY TO THE EXTENT THAT ANY INFORMATION (E.G., NAMES OF THE PARTIES) IS NOT
RELEVANT TO UNDERSTANDING THE TAX TREATMENT OR TAX STRUCTURE OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
5.7
Expenses.
Except as otherwise specifically
provided in this Agreement, each Party shall bear its own expenses incurred in
connection with the preparation, execution and performance of this Agreement and
the Acquisition, including all fees and expenses of such Party's
Representatives, provided that:
(A)
PURCHASER SHALL PAY ALL FEES REQUIRED IN
CONNECTION WITH THE FILING OF THE NOTIFICATION AND REPORT FORM UNDER THE HSR
ACT; AND
(B)
SELLER SHALL PAY ALL RECORDING FEES, SALES
TAXES, TRANSFER TAXES AND SIMILAR TAXES IMPOSED UPON TRANSFER OF THE PURCHASED
ASSETS PURSUANT TO THIS AGREEMENT.
5.8
TITLE AND SURVEY MATTERS.
(A)
SELLER HAS DELIVERED TO PURCHASER, AND
PURCHASER HAS REVIEWED AND APPROVED THE FOLLOWING:
(I) THE OWNER'S TITLE
COMMITMENTS IDENTIFIED ON SCHEDULE 5.8, AS THE SAME HAVE BEEN SUPPLEMENTED OR
UPDATED PRIOR TO THE DATED HEREOF (COLLECTIVELY, THE "COMMITMENTS") FOR THE REAL
PROPERTY PREPARED BY