ISSUE OR CAUSE THE
PUBLICATION OF ANY PRESS RELEASE OR MAKE ANY OTHER PUBLIC ANNOUNCEMENT,
INCLUDING, WITHOUT LIMITATION, ANY TOMBSTONE ADVERTISEMENTS, WITH RESPECT TO THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT WITHOUT THE CONSENT OF THE OTHER
PARTY, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED. C&T, MERGER
SUB AND THE COMPANY SHALL COOPERATE WITH EACH OTHER IN THE DEVELOPMENT AND
DISTRIBUTION OF ALL PRESS RELEASES AND OTHER PUBLIC ANNOUNCEMENTS WITH RESPECT
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, AND SHALL FURNISH
THE OTHER WITH DRAFTS OF ANY SUCH RELEASES AND ANNOUNCEMENTS AS FAR IN ADVANCE
AS POSSIBLE.
(B)
BECAUSE BOTH C&T AND THE COMPANY ANTICIPATE SHARING NON-PUBLIC,
CONFIDENTIAL OR PROPRIETARY INFORMATION IN THE COURSE OF NEGOTIATING THE MERGER,
EACH OF THEM AGREES THAT IT WILL NOT DISCLOSE, AND WILL CAUSE ITS OFFICERS,
DIRECTORS, EMPLOYEES, REPRESENTATIVES, AGENTS, ATTORNEYS AND ADVISORS
(COLLECTIVELY, "REPRESENTATIVES," ALL OF WHOM SHALL HAVE PREVIOUSLY AGREED TO BE
BOUND BY THE CONFIDENTIALITY TERMS OF THIS AGREEMENT) NOT TO DISCLOSE, ANY SUCH
NON-PUBLIC, CONFIDENTIAL AND PROPRIETARY INFORMATION, TOGETHER WITH ANALYSES,
COMPILATIONS, STUDIES, OR OTHER DOCUMENTS PREPARED THEREFROM, WHETHER SUCH
INFORMA­TION IS PROVIDED IN WRITTEN, ORAL, GRAPHIC, PICTORIAL OR RECORDED FORM
OR STORED ON COMPUTER DISCS, HARD DRIVES, MAGNETIC TAPE OR DIGITAL OR ANY OTHER
ELECTRONIC MEDIUM (THE "CONFIDENTIAL INFORMATION"), OF THE OTHER PARTY. NEITHER
PARTY WILL USE (AND WILL CAUSE ITS REPRESENTATIVES NOT TO USE) CONFIDENTIAL
INFORMATION OF THE OTHER PARTY FOR ANY COMMERCIAL OR COMPETITIVE PURPOSE
WHATSOEVER OTHER THAN IN CONNECTION WITH THE EVALUATION OF THE PROPOSED MERGER.
IF THE MERGER IS NOT CONSUMMATED FOR ANY REASON, EACH PARTY WILL HOLD IN
CONFIDENCE AND WILL NOT USE IN ANY MANNER, ANY CONFIDENTIAL INFORMATION OF THE
OTHER UNLESS SUCH INFORMATION IS OR SUBSEQUENTLY BECOMES PUBLICLY AVAILABLE
WITHOUT THE BREACH OF ANY OBLIGATION OWED TO SUPPLYING PARTY OR IS OBLIGATED TO
BE PRODUCED UNDER ORDER OF A COURT OF COMPETENT
63
JURISDICTION OR A VALID ADMINISTRATIVE, CONGRESSIONAL, OR OTHER SUBPOENA, CIVIL
INVESTIGATIVE DEMAND OR SIMILAR PROCESS. UPON REQUEST, IF THE MERGER IS NOT
CONSUMMATED, CONFIDENTIAL INFORMATION (EXCEPT FOR THAT PORTION OF THE
CONFIDENTIAL INFORMATION THAT CONSISTS OF ANALYSES, COMPILATIONS, STUDIES, OR
OTHER DOCUMENTS PREPARED BY THE REPRESENTATIVES, WHICH PORTION OF THE
CONFIDENTIAL INFORMATION WILL BE DESTROYED) WILL BE RETURNED TO THE SUPPLYING
PARTY OR DESTROYED. SUCH DESTRUCTION WILL BE CONFIRMED IN WRITING TO THE
SUPPLYING PARTY UPON REQUEST.
THE RETAINING PARTY WILL UTILIZE ITS BEST EFFORTS
TO MAINTAIN REASONABLE SECURITY TO SAFEGUARD THE CONFIDENTIAL INFORMATION, AND
WILL PROMPTLY NOTIFY THE SUPPLYING PARTY UPON DISCOVERY OF ANY UNAUTHORIZED
ACCESS TO THE CONFIDENTIAL INFORMATION. THE TERM "CONFIDENTIAL INFORMATION" DOES
NOT INCLUDE INFORMATION THAT (I) IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC
OTHER THAN AS A RESULT OF A DISCLOSURE BY THE RECIPIENT PARTY OR ITS
REPRESENTATIVES, (II) IS OR BECOMES AVAILABLE TO THE RECIPIENT PARTY OR ITS
REPRESENTATIVES ON A NON-CONFIDENTIAL BASIS FROM A SOURCE OTHER THAN THE
SUPPLYING PARTY WHICH IS NOT KNOWN BY THE RECIPIENT PARTY TO BE BOUND BY A
CONFIDENTIALITY AGREEMENT WITH SUPPLYING PARTY,