IN THE EVENT THAT ANY SUCH PROVISION OR TERM SHOULD BE DETERMINED TO BE OR
RENDERED INVALID OR UNENFORCEABLE, ALL OTHER PROVISIONS AND TERMS OF THIS
AGREEMENT SHALL REMAIN UNAFFECTED TO THE EXTENT PERMITTED BY LAW.
(D)
CONFIDENTIALITY.
THIS AGREEMENT AND ALL CORRESPONDENCE RELATED
HERETO ARE INTENDED TO BE CONFIDENTIAL TO THE PARTIES, AND EXCEPT AS
SPECIFICALLY PROVIDED HEREIN, NO PARTY SHALL PUBLISH, REPRODUCE, TRANSMIT OR
DISCLOSE ANY OF THE INFORMATION CONTAINED IN THIS AGREEMENT OR ANY RELATED
CORRESPONDENCE (HEREINAFTER "CONFIDENTIAL INFORMATION") TO ANY NON-PARTY WITHOUT
THE PRIOR WRITTEN CONSENT OF THE NON-DISCLOSING PARTY.
SUCH OBLIGATION SHALL
NOT APPLY TO DISCLOSURES TO PROFESSIONAL ADVISERS OF THE PARTIES OR THEIR
RESPECTIVE INSURERS OR ACCOUNTANTS, OR TO ANY INFORMATION PUBLICLY DISCLOSED
PURSUANT TO PARAGRAPH 11.
IN ADDITION, SUCH OBLIGATIONS SHALL NOT APPLY TO
DISCLOSURES REQUIRED BY ANY APPROPRIATE GOVERNMENTAL AUTHORITY HAVING SPECIFIC
JURISDICTION OR TO THE EXTENT REQUIRED BY APPLICABLE LAW OR ANY APPLICABLE
LISTING AGREEMENT WITH ANY SECURITIES EXCHANGE; PROVIDED, HOWEVER, THAT PRIOR TO
ANY SUCH DISCLOSURE THE DISCLOSING PARTY SHALL:
(I) PROVIDE THE NON-DISCLOSING
PARTY WITH TIMELY ADVANCE WRITTEN NOTICE OF ITS INTENT TO SO DISCLOSE; (II) USE
REASONABLE EFFORTS TO MINIMIZE
18
THE AMOUNT OF CONFIDENTIAL INFORMATION TO BE PROVIDED IN A MANNER CONSISTENT
WITH THE INTERESTS OF THE NON-DISCLOSING PARTY AND THE REQUIREMENTS OF THE
GOVERNMENTAL AUTHORITY INVOLVED; AND (III) USE REASONABLE EFFORTS (WHICH SHALL
INCLUDE, TO THE EXTENT REASONABLY PRACTICABLE, PARTICIPATION BY THE
NON-DISCLOSING PARTY IN DISCUSSIONS WITH THE GOVERNMENTAL AUTHORITY INVOLVED) TO
SECURE CONFIDENTIAL TREATMENT OF THE CONFIDENTIAL INFORMATION TO BE PROVIDED.
(E)
AMENDMENTS.
NO PROVISION OR TERM OF THIS AGREEMENT SHALL BE
AMENDED, WAIVED, DISCHARGED OR TERMINATED EXCEPT BY AN INSTRUMENT IN WRITING
SIGNED BY THE PARTIES EXPRESSLY REFERRING TO THE PROVISION OR TERM OF THIS
AGREEMENT TO WHICH SUCH INSTRUMENT RELATES; AND NO SUCH AMENDMENT OR WAIVER
SHALL EXTEND TO, OR AFFECT OR IMPAIR ANY RIGHT WITH RESPECT TO, ANY OBLIGATION
THAT IS NOT DEALT WITH EXPRESSLY THEREIN.
NO COURSE OF DEALING OR DELAY OR
OMISSION ON THE PART OF ANY OF THE PARTIES IN EXERCISING ANY RIGHT UNDER OR
PURSUANT TO THIS AGREEMENT SHALL OPERATE AS A WAIVER THEREOF OR OTHERWISE BE
PREJUDICIAL THERETO.
(F)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED SIMULTANEOUSLY OR
IN ACTUAL OR TELECOPIED COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL,
BUT ALL OF WHICH TOGETHER SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
(G)
ENTIRE AGREEMENT.
THIS AGREEMENT, TOGETHER WITH THE ANNEXES
HERETO, REPRESENTS THE ENTIRE AGREEMENT BETWEEN THE PARTIES CONCERNING THE
SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR WRITTEN OR ORAL NEGOTIATIONS,
REPRESENTATIONS AND AGREEMENTS WITH RESPECT THERETO.
NO PARTY IS RELYING ON ANY
STATEMENT OR REPRESENTATION OTHER THAN AS EXPLICITLY STATED IN THIS AGREEMENT.
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HEXION SPECIALTY CHEMICALS, INC.
By:
/s/ Craig O. Morrison
Name: Craig O. Morrison
Title: President and Chief Executive Officer
HEXION LLC
By:
/s/ Craig O. Morrison
Name: Craig O. Morrison
Title: President and Chief Executive Officer
NIMBUS MERGER SUB INC.
By:
/s/ Craig O. Morrison
Name: Craig O. Morrison