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This excerpt taken from the HTCO 8-K filed Nov 10, 2005. Confidentiality.
(a) Except as required by Applicable Law including actions compelled by a Governmental Body or a Person empowered by a Governmental Body or by Applicable Law, from and after the Closing Date, the Shareholder (for itself and for purposes of this Section 11.11 its Affiliates) shall keep confidential and protect, and shall not divulge, allow access to or use in any way, Intellectual Property Rights and Confidential Information of the Company. The Shareholder acknowledges that such Confidential Information constitutes a unique and valuable asset of the Company and represents a substantial investment of time and expense by the Company, and that any disclosure or other use of such Confidential Information other than (i) under the circumstances allowed hereunder, or (ii) for the sole benefit of the Company could cause irreparable harm to the Company. The foregoing obligations of confidentiality shall not apply to any Confidential Information that is or subsequently becomes generally publicly known, other than as a direct or indirect result of the breach of this Agreement by the Shareholder. To the extent that the Shareholder and/or its Affiliates have retained Confidential Information of the Company, the Shareholder and its Affiliates shall (i) provide such Confidential Information to the Company upon its reasonable request,
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and (ii) use the same degree of care that it utilizes in the retention and storage of its own records. (b) The Shareholder acknowledges that the Purchaser has required that the Shareholder make the agreements in this Section 11.11 as a condition to the Purchaser’s purchase of the Stock and consummation of the transactions contemplated by this Agreement. The Shareholder agrees that the agreements contained in this Section 11.11 are reasonable and necessary to protect the legitimate interests of the Purchaser and that any violation or breach of this Section 11.11 could result in irreparable injury to the Purchaser for which no adequate remedy would exist at law. Accordingly, in addition to any relief at law that may be available to the Purchaser for such violation or breach and regardless of any other provision contained in this Agreement, the Purchaser shall be entitled to seek injunctive and other equitable relief restraining such violation or breach (without any requirement that the Purchaser provide any bond or other security). (c) In the event that the Shareholder (or its Affiliates)is requested or required (by oral question or request for information or documents in any legal Proceeding, interrogatory, subpoena, civil investigative demand or similar process) to Disclose any Confidential Information, the Shareholder shall notify the Purchaser promptly of the request or requirement so that the Purchaser may seek an appropriate protective order or waive compliance with the provisions of this Section 11.11. If, in the absence of a protective order or the receipt of a waiver from the Purchaser, the Shareholder (or its Affiliates) is, on the advice of counsel, compelled to Disclose any Confidential Information to any tribunal or else stand liable for contempt, the Shareholder (or its Affiliates) may Disclose the Confidential Information to the tribunal; provided, however, that the Shareholder (or its Affiliates) shall use its best efforts to obtain, at the request of the Purchaser, an order or other assurance that confidential treatment shall be accorded to such portion of the Confidential Information required to be disclosed as the Purchaser designates. |
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