DISCLOSE ANY CONFIDENTIAL INFORMATION, PFC
SHALL PROVIDE BUYER WITH PROMPT WRITTEN NOTICE OF SUCH REQUEST OR REQUIREMENT,
WHICH NOTICE SHALL, IF PRACTICABLE, BE AT LEAST 48 HOURS PRIOR TO MAKING SUCH
DISCLOSURE, SO THAT BUYER MAY SEEK A PROTECTIVE ORDER OR OTHER APPROPRIATE
REMEDY AND/OR WAIVE COMPLIANCE WITH THE PROVISIONS OF THIS SECTION 11.14. IF, IN
THE ABSENCE OF A PROTECTIVE ORDER OR OTHER REMEDY OR THE RECEIPT OF SUCH A
WAIVER, PFC OR ITS RELATED AFFILIATE IS NONETHELESS, IN THE OPINION OF ITS
COUNSEL, LEGALLY COMPELLED TO DISCLOSE CONFIDENTIAL INFORMATION, THEN SUCH
PERSON MAY DISCLOSE THAT PORTION OF THE CONFIDENTIAL INFORMATION WHICH SUCH
COUNSEL ADVISES IS LEGALLY REQUIRED TO BE DISCLOSED, PROVIDED THAT PFC USES ITS
COMMERCIALLY REASONABLE EFFORTS TO PRESERVE THE CONFIDENTIALITY OF THE
CONFIDENTIAL INFORMATION, WHEREUPON SUCH DISCLOSURE SHALL NOT CONSTITUTE A
BREACH OF THIS SECTION 11.14.
(D)
FROM AND AFTER THE CLOSING, THE CONFIDENTIALITY AGREEMENT SHALL BE
SUPERCEDED BY THIS SECTION 11.14 AND WILL BE OF NO FURTHER FORCE OR EFFECT AFTER
CLOSING.
11.15
AFFILIATE LIABILITY. EACH OF THE FOLLOWING IS HEREIN REFERRED TO,
FOR PURPOSES OF THIS SECTION 11.15, AS A "BUYER AFFILIATE":
(A) ANY DIRECT OR
INDIRECT HOLDER OF EQUITY INTERESTS OR SECURITIES IN EITHER BUYER (WHETHER
LIMITED OR GENERAL PARTNERS, MEMBERS, SHAREHOLDERS OR OTHERWISE), AND (B) ANY
DIRECTOR, OFFICER, MANAGER, EMPLOYEE, REPRESENTATIVE OR AGENT OF (1) EITHER
BUYER OR (2) ANY AFFILIATE OF BUYER. EXCEPT TO THE EXTENT THAT A BUYER AFFILIATE
IS AN EXPRESS SIGNATORY AND PARTY THERETO, NO BUYER AFFILIATE SHALL HAVE ANY
LIABILITY OR OBLIGATION OF ANY NATURE WHATSOEVER IN CONNECTION WITH OR UNDER
THIS AGREEMENT, ANY OF THE OTHER TRANSACTION DOCUMENTS
77
OR THE TRANSACTIONS CONTEMPLATED HEREIN OR THEREIN, AND THE COMPANY HEREBY
WAIVES AND RELEASES ALL CLAIMS OF ANY SUCH LIABILITY AND OBLIGATION.
11.16
WAIVER OF JURY TRIAL. EACH PARTY HEREBY IRREVOCABLY WAIVES AND
COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE)
ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND,
ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED
ON, OR IN CONNECTION WITH, THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, WHETHER
NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR
OTHERWISE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO
THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
ARTICLE XII
DEFINITIONS AND REFERENCES
12.1
CERTAIN DEFINED TERMS. WHEN USED IN THIS AGREEMENT, THE FOLLOWING
TERMS SHALL HAVE THE RESPECTIVE MEANINGS ASSIGNED TO THEM IN THIS SECTION 12.1
OR IN THE SECTIONS, SUBSECTIONS OR OTHER SUBDIVISIONS REFERRED TO BELOW:
"Accounting Principles" means the GAAP accounting principles utilized by the
Company and the Subsidiaries in the preparation of the Financial Statements.
"Acquisition Proposal" is defined in Section 7.14.
"Adjusted Interim EBITDA" means for the period commencing on the Valuation Date
and ending on the Closing Date,