Investor Owns at least twenty percent (20%) of the outstanding
Common Stock, the Company shall permit the Investor, its nominee, assignee, and
its representative to visit and inspect any of the properties of the Company, to
examine all its books of account, records, reports and other papers, to make
copies and extracts therefrom, and provide reasonable access to and the right to
consult with, its officers, directors, key employees and independent public
accountants or any of them (and by this provision the Company authorizes said
accountants to discuss with such Investor, its nominees, assignees and
representatives the finances and affairs of the Company), all at such reasonable
times and as often as may be reasonably requested; provided, however, that the
Company shall not be obligated under this Section 8.1 with respect to
information the Company is contractually obligated to keep confidential or
secret or which the Board of Directors determines in good faith is confidential
and should not, therefore, be disclosed.
8.2.
Confidentiality
(A)
AS TO SO MUCH OF THE INFORMATION AND OTHER
MATERIAL FURNISHED UNDER OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION INFORMATION FURNISHED PURSUANT TO SECTION 8.1 HEREOF) AS CONSTITUTES
OR CONTAINS CONFIDENTIAL BUSINESS, FINANCIAL OR OTHER INFORMATION OF THE
COMPANY, EACH INVESTOR COVENANTS FOR ITSELF AND ITS MEMBERS AND OFFICERS THAT IT
WILL USE DUE CARE TO PREVENT ITS OFFICERS, MEMBERS, EMPLOYEES, COUNSEL,
ACCOUNTANTS, CONSULTANTS, ADVISORS AND OTHER REPRESENTATIVES FROM DISCLOSING
SUCH INFORMATION TO PERSONS OTHER THAN THEIR RESPECTIVE AUTHORIZED EMPLOYEES,
COUNSEL, ACCOUNTANTS, STOCKHOLDERS, PARTNERS, LIMITED PARTNERS AND OTHER
AUTHORIZED REPRESENTATIVES OR FROM USING SUCH INFORMATION EXCEPT AS AN INVESTOR
OR FOR THE BENEFIT OF THE COMPANY; PROVIDED, HOWEVER, THAT SUCH INVESTOR MAY
DISCLOSE OR DELIVER ANY INFORMATION OR OTHER MATERIAL DISCLOSED TO OR RECEIVED
BY IT SHOULD THE INVESTOR BE ADVISED BY ITS COUNSEL THAT SUCH DISCLOSURE OR
DELIVERY IS REQUIRED BY LAW, REGULATION OR JUDICIAL OR ADMINISTRATIVE ORDER.
IN
THE EVENT OF ANY TERMINATION OF THIS AGREEMENT PRIOR TO THE INITIAL CLOSING
DATE, THE INVESTOR SHALL RETURN TO THE COMPANY ALL CONFIDENTIAL MATERIAL
PREVIOUSLY FURNISHED TO THE INVESTOR OR ITS OFFICERS, MEMBERS, EMPLOYEES,
COUNSEL, ACCOUNTANTS AND OTHER REPRESENTATIVES IN CONNECTION WITH THIS
TRANSACTION.
FOR PURPOSES OF THIS SECTION 8.2, "DUE CARE" MEANS AT LEAST THE
SAME LEVEL OF CARE THAT SUCH INVESTOR WOULD USE TO PROTECT THE CONFIDENTIALITY
OF ITS OWN SENSITIVE OR PROPRIETARY INFORMATION, AND THIS OBLIGATION SHALL
SURVIVE TERMINATION OF THIS AGREEMENT.
(b)
Notwithstanding the foregoing or anything
else contained herein to the contrary, the terms and conditions of (i) that
certain Non-Disclosure Agreement dated January 11, 2005, between the Company and
WP, and (ii) that certain Non-Disclosure Agreement dated January 27, 2005,
between the Company and WP, shall remain in full force and effect in accordance
with their terms with respect to all confidential information of the Company
disclosed to WP thereunder.
27
8.3.
Lost, etc. Certificates Evidencing Shares;
Exchange
Upon receipt by the Company of evidence reasonably satisfactory to it of the
loss, theft, destruction or mutilation of