Kodak 2012 Annual Report Download - page 177

other to enable it to prepare a Tax return or comply with, or contest or litigate an audit of such Tax return or any proposed adjustments thereto.
Any obligation by Buyer or its Designee set forth in this Section 5.8(b) is contingent on the accuracy of Kodak’s representation in Section 4.1(h)
at the time of Closing.
Section 5.9 Confidentiality .
(a) At all times after Closing, each of Buyer and Buyer’s Designee, as applicable, will, and will cause its Affiliates and
Representatives to, (i) treat as confidential and safeguard any and all information, knowledge or data relating to the business of Kodak and its
Affiliates that has become or becomes known to each of Buyer, Buyer’s Designee as applicable, or their respective Affiliates or Representatives
as a result of the Transaction, the FlashPoint Agreements or Buyer’s, Buyer’s Designee’s (as applicable), or their respective Representatives’
due
diligence investigations in connection therewith (such information, knowledge or data, the “ Kodak Confidential Information ”) and (ii) with
respect to all such Kodak Confidential Information, use the same standard of care, but no less than a reasonable standard of care, to prevent the
unauthorized use, dissemination or disclosure of such Kodak Confidential Information as Buyer or Buyer’s Designee, as applicable, uses in the
protection of other proprietary information of Buyer or Buyer’s Designee, as applicable; provided , however , that, after Closing, Buyer and
Buyer’s Designee, as applicable, will not be bound by the provisions contained in the foregoing clauses (i) or (ii) with respect to information to
the extent related to the Assigned Patents. Nothing contained in this Section 5.9(a) will in any way restrict or impair the right of Buyer or
Buyer’s Designee, as applicable, to use, disclose or otherwise deal with information which (v) is or becomes a matter of public knowledge
through no fault of Buyer or Buyer’s Designee, as applicable, (w) was already in Buyer’s or Buyer’s Designee’
s (as applicable) possession at the
time of the disclosure of the information to it, and was not acquired, directly or indirectly, under any obligation of confidentiality to Kodak or its
Affiliates or to any other Person, (x) is rightfully received by Buyer or Buyer’s Designee, as applicable, from a Person having no duty of
confidentiality to Kodak; provided that Buyer or Buyer’s Designee, as applicable, did not know and should not have known after a reasonable
inquiry that the source of such information was bound by a confidentiality agreement with respect to such material that prohibited it from
furnishing or making available the information to Buyer or Buyer’s Designee, as applicable, on a non-confidential basis, (y) is independently
developed by Buyer or Buyer’s Designee, as applicable, without the use of Kodak Confidential Information, or (z) is disclosed to any Tax
authority as required by Law. If Buyer or Buyer’s Designee, as applicable, is requested in any judicial or administrative proceeding or by any
governmental or regulatory authority to disclose any Kodak Confidential Information, Buyer or Buyer’s Designee, as applicable, will (i) give
Kodak prompt notice of such request so that Kodak may seek an appropriate protective order and (ii) consult with Kodak as to the advisability of
taking legally available steps to resist or narrow such a request. Buyer or Buyer’s Designee, as applicable, will cooperate fully with Kodak in
obtaining such an order. If in the absence of a protective order Buyer or Buyer’s Designee, as applicable, is nonetheless compelled to disclose
Kodak Confidential Information, Kodak agrees that Buyer or Buyer’s Designee, as applicable, may make such disclosure without liability
hereunder, provided that Buyer or Buyer’s Designee, as applicable, gives Kodak written notice of the information to be disclosed as far in
advance of its disclosure as is practicable and, upon Kodak’s request, Buyer or Buyer’s Designee, as applicable, uses its reasonable best efforts
to obtain assurances that confidential treatment will be accorded to such information.
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