IF SUCH AMENDMENT
ADVERSELY AFFECTS THE RIGHTS OF SUCH HOLDER OTHER THAN ON A PRO RATA BASIS WITH
OTHER HOLDERS OF COMMON MEMBERSHIP UNITS (IT BEING UNDERSTOOD THAT ANY AMENDMENT
TO SECTION 4.3 OF THIS AGREEMENT PRIOR TO THE RIO TINTO MEMBER NON-APPROVAL
TRIGGER DATE REQUIRES THE PRIOR WRITTEN CONSENT OF THE RIO TINTO MEMBERS).
IN
ADDITION, ANY AMENDMENT TO THE MANAGEMENT SERVICES AGREEMENT THAT COULD
MATERIALLY ADVERSELY IMPACT THE ECONOMIC INTERESTS OF THE NON-MANAGING MEMBERS
WILL REQUIRE THE CONSENT OF THE NON-MANAGING MEMBERS PRIOR TO THE EXECUTION OF
SUCH AMENDMENT BY THE MANAGER ON BEHALF OF CPE LLC.
NOTWITHSTANDING THE
FOREGOING, THE CONSENT RIGHTS OF THE NON-MANAGING MEMBERS PURSUANT TO THIS
SECTION 10.2 SHALL TERMINATE WHEN THE NON-MANAGING MEMBERS CEASE TO OWN IN THE
AGGREGATE AT LEAST 10% OF THE INITIAL UNITS.
10.3
RESTRICTIONS ON DISCLOSURE OF INFORMATION.
FOR A PERIOD OF THREE
(3) YEARS AFTER THE EARLIER OF (X) THE DISSOLUTION OF THE COMPANY AND THE
TERMINATION OF THIS AGREEMENT OR (Y) THE DATE UPON WHICH SUCH MEMBER CEASES TO
BE A MEMBER OF THE COMPANY:
54
(A)
EACH MEMBER SHALL, AND SHALL CAUSE ITS AFFILIATES AND ITS AND ITS
AFFILIATES' DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES TO, HOLD
IN CONFIDENCE, IN ACCORDANCE WITH NO LESS THAN THE STANDARDS OF CONFIDENTIALITY
THAT IT USES WITH RESPECT TO ITS OWN CONFIDENTIAL INFORMATION (AS DEFINED
BELOW), AND IN NO EVENT LESS THAN A REASONABLE STANDARD OF CARE, ALL DOCUMENTS
AND INFORMATION CONCERNING ANY OTHER PARTY HERETO FURNISHED IT BY SUCH OTHER
PARTY OR ITS REPRESENTATIVES IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT WHICH THE MANAGER NOTIFIES SUCH MEMBER THAT IT IN GOOD FAITH
BELIEVES IT IS NOT IN THE BEST INTEREST OF THE COMPANY TO DISCLOSE OR COULD
DAMAGE THE COMPANY OR ITS BUSINESS OR WHICH THE COMPANY IS REQUIRED BY LAW OR BY
AGREEMENT WITH A THIRD PARTY TO KEEP CONFIDENTIAL (THE "CONFIDENTIAL
INFORMATION").
NOTWITHSTANDING THE FOREGOING, EACH MEMBER AND EACH OF ITS
AFFILIATES MAY DISCLOSE SUCH CONFIDENTIAL INFORMATION TO THE EXTENT THAT SUCH
CONFIDENTIAL INFORMATION IS REQUIRED, IN SUCH MEMBER'S SOLE DISCRETION, IN
CONNECTION WITH THE PREPARATION OF ANY FINANCIAL, RESERVE OR OTHER INFORMATION
AS NEEDED OR APPROPRIATE TO BE INCLUDED IN THE PUBLIC FILINGS OF SUCH MEMBER OR
IS REQUIRED TO BE DISCLOSED TO LENDERS OF INDEBTEDNESS, PROVIDED SUCH LENDERS
ARE UNDER AN OBLIGATION TO KEEP SUCH CONFIDENTIAL INFORMATION CONFIDENTIAL, OR
SUCH MEMBER OR AFFILIATE CAN DEMONSTRATE THAT SUCH CONFIDENTIAL INFORMATION IS
OR WAS (I) GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN BY THE BREACH OF THIS
AGREEMENT, OR (II) LAWFULLY ACQUIRED FROM A THIRD PERSON ON A NON-CONFIDENTIAL
BASIS OR INDEPENDENTLY DEVELOPED BY, OR ON BEHALF OF, SUCH PERSON.
NOTWITHSTANDING THE FOREGOING, EACH MEMBER AND ITS AFFILIATES MAY DISCLOSE SUCH
CONFIDENTIAL INFORMATION TO THE EXTENT THAT SUCH PERSON REASONABLY BELIEVES IT
IS LEGALLY COMPELLED TO DISCLOSE SUCH CONFIDENTIAL INFORMATION BY JUDICIAL OR
ADMINISTRATIVE PROCESS OR TO ANY TRIBUNAL, AGENCY, GOVERNMENTAL AUTHORITY,
INCLUDING, BUT NOT LIMITED TO, THE NEW YORK STOCK EXCHANGE, OR ELSE