OPPORTUNITY TO
MAKE SUCH INVESTIGATION AND EVALUATION AS IT SHALL REASONABLY DESIRE TO MAKE OF
THE BUSINESS AND AFFAIRS OF THE OTHER PARTY; PROVIDED, HOWEVER, THAT THE
FOREGOING RIGHTS GRANTED TO EACH PARTY SHALL, WHETHER OR NOT AND REGARDLESS OF
THE EXTENT TO WHICH THE SAME ARE EXERCISED, IN NO WAY AFFECT THE NATURE OR SCOPE
OF THE REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE RESPECTIVE PARTY SET
FORTH HEREIN. IN ADDITION, EACH PARTY AND ITS REPRESENTATIVES SHALL COOPERATE
FULLY (INCLUDING PROVIDING INTRODUCTIONS, WHERE NECESSARY) WITH SUCH OTHER PARTY
TO ENABLE THE PARTY TO CONTACT THIRD PARTIES, INCLUDING CUSTOMERS, PROSPECTIVE
CUSTOMERS, SPECIFIED AGENCIES OR OTHERS AS THE PARTY DEEMS REASONABLY NECESSARY
TO COMPLETE ITS DUE DILIGENCE; PROVIDED THAT SUCH PARTY AGREES NOT TO INITIATE
SUCH CONTACTS WITHOUT THE PRIOR APPROVAL OF THE OTHER PARTY, WHICH APPROVAL WILL
NOT BE UNREASONABLY WITHHELD.
(B)
HAPS AND PGMI AGREE THAT EACH SUCH PARTY
WILL NOT USE THE EVALUATION MATERIAL FOR ANY PURPOSE OTHER THAN IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED HEREUNDER.
EACH AGREES NOT TO DISCLOSE OR
ALLOW DISCLOSURE TO OTHERS OF ANY EVALUATION MATERIAL, EXCEPT TO SUCH PARTY'S
AFFILIATES OR REPRESENTATIVES, IN EACH CASE, TO THE EXTENT NECESSARY TO PERMIT
SUCH AFFILIATE OR REPRESENTATIVE TO ASSIST SUCH PARTY IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED HEREUNDER.
EACH AGREES THAT IT WILL, WITHIN TEN
(10) DAYS OF THE OTHER PARTY'S REQUEST, RE-DELIVER TO SUCH PARTY ALL COPIES OF
THAT PARTY'S EVALUATION MATERIAL IN ITS POSSESSION OR THAT OF ITS AFFILIATES OR
REPRESENTATIVES IF THE EXCHANGE CONTEMPLATED BY THIS AGREEMENT DOES NOT CLOSE AS
CONTEMPLATED HEREIN.
(C)
IN THE EVENT ANY PARTY OR ANYONE TO WHOM
EVALUATION MATERIAL HAS BEEN TRANSMITTED IN ACCORDANCE WITH THE TERMS HEREIN IS
REQUESTED IN CONNECTION WITH ANY PROCEEDING TO DISCLOSE ANY EVALUATION MATERIAL,
SUCH PARTY WILL GIVE THE OTHER PARTY PROMPT NOTICE OF SUCH REQUEST SO THAT THE
OTHER PARTY MAY SEEK AN APPROPRIATE PROTECTIVE ORDER OR OTHER REMEDY OR WAIVE
COMPLIANCE WITH THIS AGREEMENT, AND SUCH PARTY WILL COOPERATE WITH THE OTHER
PARTY TO OBTAIN SUCH PROTECTIVE ORDER.
IN THE EVENT SUCH PROTECTIVE ORDER IS
NOT OBTAINED, THE OTHER PARTY WAIVES COMPLIANCE WITH THE RELEVANT
14
PROVISIONS OF THIS SECTION, SUCH PARTY (OR SUCH PERSON TO WHOM SUCH REQUEST IS
DIRECTED) WILL FURNISH ONLY THAT PORTION OF THE EVALUATION MATERIAL WHICH IS
REQUIRED TO BE DISCLOSED.
(D)
NOTWITHSTANDING ANY OF THE FOREGOING, IF
PRIOR TO CLOSING, FOR ANY REASON, THE TRANSACTIONS CONTEMPLATED BY THIS
AGREEMENT ARE NOT CONSUMMATED, NEITHER HAPS NOR PGMI NOR ANY OF THEIR
REPRESENTATIVES SHALL DISCLOSE TO THIRD PARTIES OR OTHERWISE USE ANY EVALUATION
MATERIAL OR OTHER CONFIDENTIAL INFORMATION RECEIVED FROM THE OTHER PARTY IN THE
COURSE OF INVESTIGATING, NEGOTIATING, AND PERFORMING THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT; PROVIDED, HOWEVER, THAT NOTHING SHALL BE DEEMED
TO BE CONFIDENTIAL INFORMATION WHICH:
(I)
IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS A
RESULT OF A DISCLOSURE BY SUCH PARTY, ITS AFFILIATES OR REPRESENTATIVES;
(II)
WAS AVAILABLE TO SUCH PARTY ON A NON-CONFIDENTIAL BASIS PRIOR