EXTENT OF SUCH INVALIDITY, ILLEGALITY OR UNENFORCEABILITY, WITHOUT
INVALIDATING THE REMAINDER OF SUCH PROVISION OR PROVISIONS OR THE REMAINING
PROVISIONS OF THIS AGREEMENT, AND THIS AGREEMENT SHALL BE CONSTRUED AS IF SUCH
INVALID, ILLEGAL OR UNENFORCEABLE PROVISION OR PROVISIONS HAD NEVER BEEN
CONTAINED HEREIN, UNLESS SUCH A CONSTRUCTION WOULD BE UNREASONABLE.
SECTION 10.8
CONFIDENTIALITY.
(A)
FOLLOWING THE CLOSING, SELLER SHALL TREAT AS CONFIDENTIAL AND
SHALL SAFEGUARD AND NOT USE TO THE DETRIMENT OF BUYER OR ITS AFFILIATES ANY AND
ALL INFORMATION, KNOWLEDGE AND DATA OF THE COMPANY BY USING THE SAME DEGREE OF
CARE, BUT NO LESS THAN A REASONABLE STANDARD OF CARE, TO
38
prevent the unauthorized use, dissemination or disclosure of such information,
knowledge and data as Seller used with respect thereto prior to the execution of
this Agreement.
(B)
BUYER SHALL TREAT AS CONFIDENTIAL AND SHALL SAFEGUARD AND NOT USE
TO THE DETRIMENT OF SELLER OR ITS AFFILIATES ANY INFORMATION RELATING TO THE
BUSINESS OF SELLER AND ITS AFFILIATES; PROVIDED, HOWEVER, THAT NOTHING IN THIS
SECTION 10.8(B) SHALL PREVENT THE DISCLOSURE OF ANY SUCH INFORMATION, KNOWLEDGE
OR DATA TO ANY DIRECTORS, OFFICERS OR EMPLOYEES OF BUYER TO WHOM SUCH DISCLOSURE
IS NECESSARY OR DESIRABLE IN THE CONDUCT OF THE BUSINESS OF THE COMPANY
FOLLOWING THE CLOSING IF SUCH PERSONS ARE INFORMED BY BUYER OF THE CONFIDENTIAL
NATURE OF SUCH INFORMATION AND ARE DIRECTED BY BUYER TO COMPLY WITH THE
PROVISIONS OF THIS SECTION 10.8(B). BUYER ACKNOWLEDGES THAT ITS FAILURE TO
MAINTAIN AS CONFIDENTIAL ANY AND ALL INFORMATION OF SELLER AND ITS AFFILIATES,
IN ACCORDANCE WITH THIS SECTION 10.8(B), COULD CAUSE SELLER AND ITS AFFILIATES
IRREPARABLE HARM AND, THUS, IT AGREES TO USE ITS BEST EFFORTS TO MAINTAIN AS
CONFIDENTIAL AND SAFEGUARD SUCH INFORMATION.
(C)
THE PARTIES HERETO ACKNOWLEDGE THAT THE CONFIDENTIALITY
OBLIGATIONS SET FORTH HEREIN SHALL NOT EXTEND TO INFORMATION, KNOWLEDGE AND DATA
THAT (I) IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS A RESULT
OF DISCLOSURE OF A PARTY IN BREACH OF THIS SECTION 10.8, (II) IS REQUIRED TO BE
DISCLOSED BY A COURT OR GOVERNMENTAL ENTITY OF COMPETENT JURISDICTION, (III) WAS
OR BECOMES AVAILABLE TO A PARTY HERETO ON A NON-CONFIDENTIAL BASIS FROM A SOURCE
(OTHER THAN THE PARTY OWING A DUTY OF CONFIDENTIALITY UNDER THIS SECTION 10.8)
OR (IV) IS NECESSARY OR APPROPRIATE TO BE DISCLOSED IN MAKING A FILING REQUIRED
BY LAW OR FOR OBTAINING ANY CONSENT OR APPROVAL REQUIRED FOR THE CONSUMMATION OF
THE TRANSACTIONS CONTEMPLATED HEREIN.
(D)
IF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE NOT
CONSUMMATED FOR ANY REASON, THE PARTIES HERETO SHALL PROMPTLY RETURN TO EACH
OTHER ALL BOOKS, RECORDS AND ANY OTHER INFORMATION (WHETHER WRITTEN OR IN
ELECTRONIC FORM) FURNISHED BY A PARTY, ITS AFFILIATES OR REPRESENTATIVES
(INCLUDING ALL COPIES, IF ANY, THEREOF).
(E)
IN THE EVENT OF A BREACH OF THE OBLIGATIONS HEREUNDER BY BUYER OR
SELLER, THE AGGRIEVED PARTY, IN ADDITION TO ALL OTHER AVAILABLE REMEDIES, WILL
BE ENTITLED TO INJUNCTIVE RELIEF TO ENFORCE THE PROVISIONS OF THIS SECTION 10.8
IN ANY