Common use of Confidentiality; Privileged Information Clause in Contracts

Confidentiality; Privileged Information. (a) Each Investor and Board Observer expressly acknowledge that Confidential Information obtained or received by such Investor is confidential and that the disclosure of such Confidential Information, either publicly or privately to other parties, would cause irreparable injury to the Company. Except with the prior written consent of the Company, no Investor or Board Observer shall (and each Investor and Board Investor shall instruct their respective representatives not to) disclose any such Confidential Information to a third party, and PV, AF and any Board Observer shall use the same level of efforts utilized by PV and AF and their respective Affiliates, and the Board Observer’s principal organization, respectively, in the protection of such organization’s own confidential information to preserve the confidentiality of such Confidential Information (and each Investor and Board Observer shall cause its representatives to do the same). The obligations of each Investor and any Board Observer under this Section 3.2 shall survive the termination of this Agreement for a period of five (5) years; provided, that with respect to any trade secret, such obligations shall continue to apply to such trade secret for so long as such trade secret remains a trade secret. Notwithstanding the foregoing, the Investors, any Board Observer and their respective Affiliates shall not be bound by the confidentiality obligations of this Section 3.2 with respect to any Confidential Information that is required to be disclosed pursuant to Applicable Law; provided, that in such case, such Investor, any Board Observer or the respective Affiliate of such Investor or Board Observer shall disclose only that portion of such Confidential Information that is required to be disclosed and, to the extent reasonably practicable provide advance notice to the Company of such disclosure and provide the Company a reasonable amount of time and opportunity to seek a protective order or similar remedy, and to reasonably cooperate (at the Company’s sole expense) with the seeking of such protective order or similar remedy. Notwithstanding the foregoing, and for the avoidance of doubt, (A) an Investor or Board Observer may disclose Confidential Information to (x) their respective Affiliates and their respective representatives in connection with the transactions contemplated by this Agreement and the Transaction Agreements (or their rights and obligations hereunder), (y) to any direct or indirect, actual or potential shareholder, member, partner or other investor in such Investor or Board Observer’s principal organization, in each case of subclauses (x) and (y) so long as such Persons are informed of the confidential nature of such information and are directed to treat such information confidentially and (z) solely with respect to PV, any potential financing source and their respective representatives in connection with a Permitted Loan; provided, that such financing sources shall enter into customary confidentiality agreements with respect to any Confidential Information to be provided thereunder, and (B) any Investor Designee and Board Observer may disclose to PV, AF or any of their respective Affiliates any information obtained or received by such Investor Designee or Board Observer in his or her capacity as such. Each Investor, on behalf of itself and its respective Affiliates and respective Board Observer, hereby acknowledges and agrees that such Investor shall be responsible for any failure of any of the Persons enumerated in this Section 3.2 to whom it discloses Confidential Information to treat such information as required by the terms of this Section 3.2.

Confidentiality; Privileged Information. (a) Each Investor and Board Observer expressly acknowledge that Confidential Information obtained or received by such Investor is confidential and that the disclosure of such Confidential Information, either publicly or privately to other parties, would cause irreparable injury to the Company. Except with Without the prior written consent of Sellers’ Representative, the CompanyInterested Parties will not disclose any communications or information which they have received from Sellers’ Representative unless required by law (after advance written notice to and consultation with Sellers’ Representative and legal counsel) and will only use such information in connection with consultation with Sellers’ Representative in accordance with this Agreement. In the event of a breach of this Section 4, no Investor monetary damages may not be an adequate remedy and Sellers’ Representative may pursue injunctive or Board Observer shall other equitable relief. To the extent that any information exchanged between or among Sellers’ Representative and any Interested Party including, but not limited to, materials, communications or other information (“Privileged Material”) that may be subject to the attorney-client privilege, work product doctrine or any other applicable privilege or doctrine concerning any confidential information or any pending, threatened or prospective action, suit, proceeding, investigation, arbitration or dispute (a “Proceeding”), it is acknowledged and agreed that Sellers’ Representative and each Investor of the Interested Parties intend to work together and Board Investor consult with each other regarding such matters and shall instruct their respective representatives have a commonality of interest with respect to such Privileged Material or Proceeding and that it is the mutual desire, intention and understanding of Sellers’ Representative and the Interested Parties that the sharing of such Privileged Material is not intended to) disclose any such Confidential Information to a third party, and PVshall not, AF and any Board Observer shall use the same level of efforts utilized by PV and AF and their respective Affiliates, and the Board Observer’s principal organization, respectively, in the protection of such organization’s own confidential information to preserve affect the confidentiality of any of such Confidential Information (and each Investor and Board Observer shall cause its representatives to do Privileged Material or waive or diminish the same)continued protection of any of such Privileged Material under the attorney-client privilege, work product doctrine or other applicable privilege or doctrine. The obligations of each Investor and any Board Observer under this Section 3.2 shall survive the termination of Notwithstanding anything contained in this Agreement for a period to the contrary, Sellers’ Representative shall have the right to determine not to convey or exchange any particular Privileged Material if Sellers’ Representative determines, in his commercially reasonable discretion or upon the advice of five (5) years; providedlegal counsel, that with respect to any trade secret, such obligations shall continue to apply to conveyance or exchange could jeopardize the confidential treatment of any such trade secret for so long as such trade secret remains a trade secretPrivileged Material. Notwithstanding the foregoing, the Investors, any Board Observer and their respective Affiliates nothing in this Agreement shall not be bound by constitute a waiver of the confidentiality obligations provisions set forth in Section 6(e) of this Section 3.2 with respect to any Confidential Information that is required to be disclosed pursuant to Applicable Law; providedthe Purchase Agreement, that nor shall anything in such case, such Investor, any Board Observer or the respective Affiliate of such Investor or Board Observer shall disclose only that portion of such Confidential Information that is required to be disclosed and, to the extent reasonably practicable provide advance notice to the Company of such disclosure and provide the Company a reasonable amount of time and opportunity to seek a protective order or similar remedy, and to reasonably cooperate (at the Company’s sole expense) with the seeking of such protective order or similar remedy. Notwithstanding the foregoing, and for the avoidance of doubt, (A) an Investor or Board Observer may disclose Confidential Information to (x) their respective Affiliates and their respective representatives in connection with the transactions contemplated by this Agreement and be construed to amend, modify or otherwise limit the Transaction Agreements (or their rights and obligations hereunder), (y) to any direct or indirect, actual or potential shareholder, member, partner or other investor in such Investor or Board Observer’s principal organization, in each case of subclauses (x) and (y) so long as such Persons are informed of the confidential nature of such information and are directed to treat such information confidentially and (z) solely with respect to PV, any potential financing source and their respective representatives in connection with a Permitted Loan; provided, that such financing sources shall enter into customary confidentiality agreements with respect to any Confidential Information to be provided thereunder, and (B) any Investor Designee and Board Observer may disclose to PV, AF or any of their respective Affiliates any information obtained or received by such Investor Designee or Board Observer in his or her capacity as such. Each Investor, on behalf of itself and its respective Affiliates and respective Board Observer, hereby acknowledges and agrees that such Investor shall be responsible for any failure of any of the Persons enumerated in this Section 3.2 to whom it discloses Confidential Information to treat such information as required by the terms of this Section 3.2provisions set forth therein.