"REPRESENTATIVES") OF BUYER AND (II) ITS OWN REPRESENTATIVES, PROVIDED THAT
THOSE REPRESENTATIVES AGREE TO THE CONFIDENTIALITY PROVISIONS OF THIS SECTION
10.3.
"CONFIDENTIAL INFORMATION" MEANS, WITH RESPECT TO ANY PERSON, ALL TRADE
SECRETS, KNOW HOW AND OTHER CONFIDENTIAL, NONPUBLIC AND/OR PROPRIETARY
INFORMATION OF THAT PERSON, INCLUDING ANY SUCH INFORMATION DERIVED FROM REPORTS,
INVESTIGATIONS, RESEARCH, STUDIES,
56
WORK IN PROGRESS, CODES, MARKETING, SALES OR SERVICE PROGRAMS, CUSTOMER LISTS,
RECORDS RELATING TO PAST SERVICE PROVIDED TO CUSTOMERS, CAPITAL EXPENDITURE
PROJECTS, COST SUMMARIES, EQUIPMENT OR PRODUCTION SYSTEM DESIGNS OR DRAWINGS,
PRICING FORMULAE, CONTRACT ANALYSES, FINANCIAL INFORMATION, PROJECTIONS, PRESENT
AND FUTURE BUSINESS PLANS, AGREEMENTS WITH VENDORS, JOINT VENTURE AGREEMENTS,
CONFIDENTIAL FILINGS WITH ANY GOVERNMENTAL BODY AND ALL OTHER CONFIDENTIAL,
NONPUBLIC CONCEPTS, METHODS, TECHNIQUES OR PROCESSES OF DOING BUSINESS, IDEAS,
MATERIALS OR INFORMATION PREPARED OR PERFORMED FOR, BY OR ON BEHALF OF THAT
PERSON; PROVIDED, HOWEVER, THAT CONFIDENTIAL INFORMATION SHALL NOT INCLUDE SUCH
INFORMATION AS (A) BECOMES KNOWN TO THE PUBLIC GENERALLY THROUGH NO FAULT OF
SUCH SELLER PARTY OR (B) IS REQUIRED TO BE DISCLOSED BY LAW OR THE ORDER OF ANY
GOVERNMENTAL BODY UNDER COLOR OF LAW, PROVIDED, THAT PRIOR TO DISCLOSING ANY
INFORMATION PURSUANT TO THIS CLAUSE (B), SUCH SELLER PARTY SHALL, IF POSSIBLE,
GIVE PRIOR WRITTEN NOTICE THEREOF TO BUYER AND PROVIDE BUYER WITH THE
OPPORTUNITY TO CONTEST THAT DISCLOSURE.
(B)
BECAUSE OF (I) THE DIFFICULTY OF MEASURING ECONOMIC LOSSES AS A
RESULT OF THE BREACH OF THE COVENANTS IN SECTION 10.3(A) AND (II) THE IMMEDIATE
AND IRREPARABLE DAMAGE THAT WOULD BE CAUSED TO BUYER FOR WHICH IT WOULD HAVE NO
OTHER ADEQUATE REMEDY, IN THE EVENT OF A BREACH OR THREATENED BREACH BY SELLER
OF THE PROVISIONS OF THIS SECTION 10.3 WITH RESPECT TO ANY CONFIDENTIAL
INFORMATION, BUYER SHALL BE ENTITLED TO AN INJUNCTION RESTRAINING THE SELLER
PARTIES FROM DISCLOSING, IN WHOLE OR IN PART, THAT CONFIDENTIAL INFORMATION.
NOTHING HEREIN SHALL BE CONSTRUED AS PROHIBITING BUYER FROM PURSUING ANY OTHER
AVAILABLE REMEDY FOR SUCH BREACH OR THREATENED BREACH, INCLUDING THE RECOVERY OF
DAMAGES.
SECTION 10.4
EXPENSES.
EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, BUYER AND THE SELLER PARTIES SHALL PAY THEIR OWN RESPECTIVE FEES AND
EXPENSES INCURRED IN CONNECTION WITH THE NEGOTIATION, PREPARATION AND EXECUTION
OF THIS AGREEMENT (INCLUDING THE EXHIBITS AND SCHEDULES HERETO) AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREIN AND THEREIN, INCLUDING ALL
LEGAL, ACCOUNTING, TAX, BROKERS' AND OTHER ADVISORS' FEES AND EXPENSES, IT BEING
UNDERSTOOD THAT SUCH EXPENSES SHALL BE PAID ON BEHALF OF THE SELLER PARTIES BY
SIRIUS AT OR PRIOR TO THE CLOSING.
NOTWITHSTANDING THE FOREGOING, (1) EACH OF
BUYER, ON THE ONE-HAND, AND THE SELLER PARTIES, ON THE OTHER HAND, SHALL PAY
ONE-HALF OF THE FILING FEE UNDER THE HSR ACT AND (2) BUYER SHALL PAY ONE-HALF OF
THE COST INCURRED BY SIRIUS FOR OBTAINING THE FINANCIAL STATEMENTS CONTEMPLATED
BY SECTION 6.14, PROVIDED THAT IF THIS AGREEMENT IS TERMINATED AND SIRIUS OR THE
SELLER PARTIES ENGAGE IN ACTIVITY DESCRIBED IN SECTION 6.1 WITHIN TWO YEARS FROM
THE DATE OF THIS AGREEMENT, THEN THE