UNLESS SUCH PARTY SHALL FIRST OFFER IN
WRITING TO SURRENDER SUCH BOOKS, RECORDS AND OTHER DATA TO THE OTHER PARTY AND
SUCH OTHER PARTY DOES NOT AGREE IN WRITING TO TAKE POSSESSION THEREOF DURING THE
TEN (10) DAY PERIOD AFTER SUCH OFFER IS MADE.
ANY INFORMATION OBTAINED BY A
PARTY IN ACCORDANCE WITH THIS SUBSECTION SHALL BE HELD CONFIDENTIAL BY SUCH
PARTY IN ACCORDANCE WITH SECTION 5.07.
SECTION 5.05.
ASSETS AFTER THE CLOSING.
IF SELLER
SHALL, AT ANY TIME AFTER THE CLOSING, RECEIVE ANY TRANSFERRED ASSETS (INCLUDING
ANY PAYMENTS RELATING TO ANY TRANSFERRED AGREEMENTS, TO THE EXTENT PERFORMED
AFTER THE CLOSING), IT SHALL PROMPTLY DELIVER SUCH ASSETS OR PROPERTY TO BUYER.
SECTION 5.06.
NON-COMPETE.
(A)
FROM THE CLOSING AND FOR A PERIOD OF SEVEN
(7) YEARS THEREAFTER (THE "NON-COMPETE PERIOD"), SELLER AND SELLER GUARANTOR
SHALL NOT, AND SHALL CAUSE THEIR AFFILIATES NOT TO, DIRECTLY OR INDIRECTLY,
ENGAGE IN, HOLD AN INTEREST IN, LEND FUNDS TO, OWN, MANAGE, OPERATE, CONTROL,
DIRECT, BE CONNECTED WITH AS A STOCKHOLDER (OTHER THAN AS A HOLDER OF LESS THAN
TWO PERCENT (2%)
18
OF A PUBLICLY-TRADED SECURITY), JOINT VENTURER, PARTNER OR CONSULTANT, OR
OTHERWISE ENGAGE OR ADVISE, SPECIFICALLY WITH RESPECT TO THE DEVELOPMENT,
PRODUCTION, MANUFACTURE OR SALE OF WET TANTALUM CAPACITORS, ANY PERSON SEEKING
TO ENGAGE IN THE BUSINESS OF DEVELOPING, PRODUCING, MANUFACTURING OR SELLING
(THROUGH SUBCONTRACT OR OTHERWISE) WET TANTALUM CAPACITORS ANYWHERE IN THE
WORLD.
(B)
IF, AT THE TIME OF ENFORCEMENT OF
SECTION 5.06, A COURT OR ARBITRATOR HOLDS THAT THE RESTRICTIONS STATED HEREIN
ARE UNREASONABLE UNDER THE CIRCUMSTANCES THEN EXISTING, THE PARTIES AGREE THAT
THE MAXIMUM PERIOD, SCOPE OR GEOGRAPHICAL AREA REASONABLE UNDER SUCH
CIRCUMSTANCES SHALL BE SUBSTITUTED FOR THE STATED PERIOD, SCOPE OR AREA
DETERMINED TO BE REASONABLE UNDER THE CIRCUMSTANCES BY SUCH COURT OR ARBITRATOR,
AS APPLICABLE.
SECTION 5.07.
CONFIDENTIAL INFORMATION.
SELLER
ACKNOWLEDGES AND AGREES THAT (I) IT HAS CONFIDENTIAL INFORMATION (AS DEFINED
BELOW) AND THAT SUCH CONFIDENTIAL INFORMATION DOES AND WILL CONSTITUTE VALUABLE,
SPECIAL AND UNIQUE PROPERTY OF BUYER FROM AND AFTER THE CLOSING DATE AND
(II) FOR A PERIOD OF SEVEN (7) YEARS AFTER THE CLOSING DATE, IT WILL NOT,
DIRECTLY OR INDIRECTLY, AND WILL CAUSE ITS AFFILIATES NOT TO, DISCLOSE, REVEAL,
DIVULGE OR COMMUNICATE TO ANY PERSON OTHER THAN AUTHORIZED OFFICERS, DIRECTORS
AND EMPLOYEES OF BUYER OR EMPLOYEES OR AGENTS OF SELLER WITH A NEED TO KNOW,
PROVIDED SUCH CONFIDENTIAL INFORMATION IS NOT USED IN VIOLATION OF THIS
AGREEMENT, OR USE OR OTHERWISE EXPLOIT FOR ITS OWN BENEFIT OR FOR THE BENEFIT OF
ANYONE OTHER THAN BUYER, ANY CONFIDENTIAL INFORMATION.
SELLER SHALL NOT HAVE
ANY OBLIGATION TO KEEP CONFIDENTIAL ANY CONFIDENTIAL INFORMATION IF AND TO THE
EXTENT DISCLOSURE THEREOF IS SPECIFICALLY REQUIRED BY LAW; PROVIDED, HOWEVER,
THAT IN THE EVENT DISCLOSURE IS REQUIRED BY APPLICABLE LAW, SELLER SHALL, TO THE
EXTENT REASONABLY POSSIBLE, PROVIDE BUYER WITH PROMPT NOTICE OF SUCH REQUIREMENT
PRIOR TO MAKING ANY DISCLOSURE SO THAT BUYER MAY SEEK AN APPROPRIATE PROTECTIVE
ORDER.
FOR PURPOSES OF THIS SECTION 5.07, "CONFIDENTIAL INFORMATION" SHALL MEAN
ANY