GOVERNMENTAL OR PRIVATE, WITHOUT THE PRIOR
WRITTEN CONSENT OF THE COMPANY, EXCEPT TO THE EXTENT THAT THE CONFIDENTIAL
INFORMATION:
8.1.
WAS KNOWN OR USED BY THE PURCHASER OR ITS AFFILIATES PRIOR TO ITS
DATE OF DISCLOSURE TO THE PURCHASER; OR
8.2.
EITHER BEFORE OR AFTER THE DATE OF THE DISCLOSURE TO THE PURCHASER
IS LAWFULLY DISCLOSED TO THE PURCHASER OR ITS AFFILIATES BY SOURCES OTHER THAN
THE COMPANY RIGHTFULLY IN POSSESSION OF THE CONFIDENTIAL INFORMATION; OR
8.3.
EITHER BEFORE OR AFTER THE DATE OF THE DISCLOSURE TO THE PURCHASER
BECOMES PUBLISHED OR GENERALLY KNOWN TO THE PUBLIC THROUGH NO FAULT OR OMISSION
ON THE PART OF THE PURCHASER; OR
8.4.
IS INDEPENDENTLY DEVELOPED BY OR FOR THE PURCHASER OR ITS
AFFILIATES WITHOUT REFERENCE TO OR RELIANCE UPON THE CONFIDENTIAL INFORMATION;
OR
8.5.
IS REQUIRED TO BE DISCLOSED BY THE PURCHASER OR ITS AFFILIATES TO
COMPLY WITH APPLICABLE LAWS OR REGULATIONS, TO DEFEND OR PROSECUTE LITIGATION OR
TO
E-5
COMPLY WITH LEGAL PROCESS.
9.
MISCELLANEOUS.
9.1.
GOVERNING LAW.
THIS AGREEMENT SHALL BE CONSTRUED AND THE
RESPECTIVE RIGHTS OF THE PARTIES DETERMINED ACCORDING TO THE SUBSTANTIVE LAWS OF
THE STATE OF DELAWARE, USA, NOTWITHSTANDING THE PROVISIONS GOVERNING CONFLICT OF
LAWS UNDER SUCH DELAWARE LAW TO THE CONTRARY.
9.2.
ASSIGNMENT.
THE COMPANY MAY NOT ASSIGN THIS AGREEMENT IN WHOLE OR
IN PART WITHOUT THE CONSENT OF THE PURCHASER, INCLUDING IN THE CASE OF
ASSIGNMENT BY OPERATION OF LAW OR IN CONNECTION WITH THE SALE OR TRANSFER OF ALL
OR SUBSTANTIALLY ALL OF THE BUSINESS AND ASSETS OF THE COMPANY.
THE PURCHASER
MAY TRANSFER OR ASSIGN ITS RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT IN WHOLE
OR IN PART, INCLUDING TO AN AFFILIATE OR IN CONNECTION WITH A SALE OF ALL OR
SUBSTANTIALLY ALL OF THE BUSINESS OR ASSETS OF THE PURCHASER, PROVIDED, HOWEVER,
THAT THE PURCHASER SHALL NOTIFY THE COMPANY OF SUCH TRANSFER OR ASSIGNMENT
PROMPTLY AFTER THE PERFORMANCE THEREOF.
9.3.
ENTIRE AGREEMENT; AMENDMENTS.
THIS AGREEMENT CONSTITUTES THE
ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF,
AND SUPERSEDES ALL PREVIOUS ARRANGEMENTS WITH RESPECT TO THE SUBJECT MATTER
HEREOF, WHETHER WRITTEN OR ORAL.
ANY AMENDMENT OR MODIFICATION TO THIS
AGREEMENT SHALL BE MADE IN WRITING SIGNED BY BOTH PARTIES.
9.4.
NOTICES.
Notices to the Company shall be addressed to:
[COMPANY]
[
[
]
Attention: Chief Executive Officer
with a copy, which shall not constitute notice, to:
Goodwin Procter LLP
53 State Street
Boston, MA 02109
Attention: Lawrence S. Wittenberg
Notices to the Purchaser shall be addressed to:
[PURCHASER]
[
]
[
]
Attention: General Counsel
with a copy, which shall not constitute notice, to:
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
Attention: Pran Jha
E-6
Any Party may change its address by giving notice to the other Party in the
manner herein provided.
Any notice required or provided for by the terms of
this Agreement shall be in writing and shall be (a) sent by registered or
certified mail, return receipt requested, postage prepaid, (b) sent