LISTS, MARKET STUDIES, BUSINESS PLANS, COMPUTER
HARDWARE, SOFTWARE AND DATABASE TECHNOLOGIES, SYSTEMS, STRUCTURES AND
ARCHITECTURES;
(III)
ALL INFORMATION CONCERNING THE
BUSINESS AND AFFAIRS OF THE DISCLOSING PARTY (WHICH INCLUDES HISTORICAL AND
CURRENT FINANCIAL STATEMENTS, FINANCIAL PROJECTIONS AND BUDGETS, TAX RETURNS AND
ACCOUNTANTS' MATERIALS, HISTORICAL, CURRENT AND PROJECTED SALES, CAPITAL
SPENDING BUDGETS AND PLANS, BUSINESS PLANS, STRATEGIC PLANS, MARKETING AND
ADVERTISING PLANS, PUBLICATIONS, CLIENT AND CUSTOMER LISTS AND FILES, CONTRACTS,
THE NAMES AND BACKGROUNDS OF KEY PERSONNEL AND PERSONNEL TRAINING TECHNIQUES AND
MATERIALS, HOWEVER DOCUMENTED), AND ALL INFORMATION OBTAINED FROM REVIEW OF THE
DISCLOSING PARTY'S DOCUMENTS OR PROPERTY OR DISCUSSIONS WITH THE DISCLOSING
PARTY REGARDLESS OF THE FORM OF THE COMMUNICATION; AND
58
(IV)
ALL NOTES, ANALYSES, COMPILATIONS,
STUDIES, SUMMARIES AND OTHER MATERIAL PREPARED BY THE RECEIVING PARTY TO THE
EXTENT CONTAINING OR BASED, IN WHOLE OR IN PART, UPON ANY INFORMATION INCLUDED
IN THE FOREGOING.
(B)
ANY TRADE SECRETS OF A DISCLOSING PARTY
SHALL ALSO BE ENTITLED TO ALL OF THE PROTECTIONS AND BENEFITS UNDER APPLICABLE
TRADE SECRET LAW AND ANY OTHER APPLICABLE LAW. IF ANY INFORMATION THAT A
DISCLOSING PARTY DEEMS TO BE A TRADE SECRET IS FOUND BY A COURT OF COMPETENT
JURISDICTION NOT TO BE A TRADE SECRET FOR PURPOSES OF THIS ARTICLE 12, SUCH
INFORMATION SHALL STILL BE CONSIDERED CONFIDENTIAL INFORMATION OF THAT
DISCLOSING PARTY FOR PURPOSES OF THIS ARTICLE 12 TO THE EXTENT INCLUDED WITHIN
THE DEFINITION.
IN THE CASE OF TRADE SECRETS, EACH DISCLOSING PARTY, HEREBY
WAIVES ANY REQUIREMENT THAT THE OTHER PARTY SUBMIT PROOF OF THE ECONOMIC VALUE
OF ANY TRADE SECRET OR POST A BOND OR OTHER SECURITY.
12.2
RESTRICTED USE OF CONFIDENTIAL INFORMATION
(A)
EACH RECEIVING PARTY ACKNOWLEDGES THE
CONFIDENTIAL AND PROPRIETARY NATURE OF THE CONFIDENTIAL INFORMATION OF THE
DISCLOSING PARTY AND AGREES THAT SUCH CONFIDENTIAL INFORMATION (I) SHALL BE KEPT
CONFIDENTIAL BY THE RECEIVING PARTY; (II) SHALL NOT BE USED FOR ANY REASON OR
PURPOSE OTHER THAN TO EVALUATE AND CONSUMMATE THE CONTEMPLATED TRANSACTIONS; AND
(III) WITHOUT LIMITING THE FOREGOING, SHALL NOT BE DISCLOSED BY THE RECEIVING
PARTY TO ANY PERSON, EXCEPT IN EACH CASE AS OTHERWISE EXPRESSLY PERMITTED BY THE
TERMS OF THIS AGREEMENT OR WITH THE PRIOR WRITTEN CONSENT OF AN AUTHORIZED
REPRESENTATIVE OF SELLERS WITH RESPECT TO CONFIDENTIAL INFORMATION OF SELLERS
(EACH, A "SELLER CONTACT") OR AN AUTHORIZED REPRESENTATIVE OF BUYER WITH RESPECT
TO CONFIDENTIAL INFORMATION OF BUYER (EACH, A "BUYER CONTACT"). EACH OF BUYER
AND SELLERS SHALL DISCLOSE THE CONFIDENTIAL INFORMATION OF THE OTHER PARTY ONLY
TO ITS REPRESENTATIVES WHO REQUIRE SUCH MATERIAL FOR THE PURPOSE OF EVALUATING
THE CONTEMPLATED TRANSACTIONS AND ARE INFORMED BY BUYER OR SELLERS, AS THE CASE
MAY BE, OF THE OBLIGATIONS OF THIS ARTICLE 12 WITH RESPECT TO SUCH INFORMATION.
EACH OF BUYER AND SELLERS SHALL (A) ENFORCE THE TERMS OF THIS ARTICLE 12 AS TO
ITS RESPECTIVE REPRESENTATIVES; (B) TAKE SUCH ACTION TO THE EXTENT NECESSARY TO
CAUSE ITS REPRESENTATIVES TO COMPLY WITH THE TERMS AND CONDITIONS OF THIS
ARTICLE 12; AND (C) BE RESPONSIBLE AND LIABLE FOR ANY