ANY OF ITS SUBSIDIARIES HAS ANY
PARENT, AFFILIATE OR JOINT VENTURE (OTHER THAN AVISTAR OR ITS SUBSIDIARIES UNDER
THIS AGREEMENT) WHO OWNS OR CONTROLS ANY PATENTS AS OF THE EFFECTIVE DATE); AND
(IV) NEITHER AVISTAR NOR ITS SUBSIDIARIES HAS ASSIGNED OR OTHERWISE TRANSFERRED
ITS RIGHTS TO ANY PATENTS IN THE ONE (1) YEAR PERIOD PRIOR TO THE EFFECTIVE DATE
WHICH WOULD OTHERWISE QUALIFY AS AVISTAR PATENTS IN THE ABSENCE OF SUCH
ASSIGNMENT OR TRANSFER.
6.2
CONFIDENTIALITY OF TERMS. NEITHER PARTY
SHALL DISCLOSE THE TERMS OF THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF
THE OTHER PARTY EXCEPT:
(A)
TO SUBSIDIARIES OF THE PARTIES IN
CONFIDENCE;
(B)
TO ANY GOVERNMENTAL BODY HAVING
JURISDICTION AND SPECIFICALLY REQUIRING SUCH DISCLOSURE (IN CONFIDENCE TO THE
EXTENT ALLOWED);
(C)
IN RESPONSE TO A VALID SUBPOENA OR AS
OTHERWISE MAY BE REQUIRED BY LAW (IN CONFIDENCE TO THE EXTENT ALLOWED);
[***]
Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed pursuant to Rule 24b-2 promulgated under the
Securities Exchange Act of 1934, as amended, and the omitted portions
represented by [***] have been separately filed with the Securities and Exchange
Commission.
11
(D)
TO THE EXTENT REQUIRED, FOR THE
PURPOSES OF DISCLOSURE IN CONNECTION WITH THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED, THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY OTHER REPORTS FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION, OR ANY OTHER FILINGS, REPORTS OR
DISCLOSURES THAT MAY BE REQUIRED UNDER APPLICABLE LAWS OR REGULATIONS, PROVIDED
HOWEVER, THAT IN THE EVENT EITHER PARTY DETERMINES IT IS NECESSARY TO DISCLOSE
ANY TERMS BEYOND THOSE INCLUDED IN THE PRESS RELEASES ATTACHED AS EXHIBIT B TO
THE SETTLEMENT AGREEMENT OR THAT IT IS REQUIRED TO PUBLICLY FILE THIS AGREEMENT
OR THE SETTLEMENT AGREEMENT, THE DISCLOSING PARTY AGREES TO USE COMMERCIALLY
REASONABLE EFFORTS TO RECEIVE CONFIDENTIAL TREATMENT FOR INFORMATION DEEMED
SENSITIVE AND SHALL GIVE THE OTHER PARTY REASONABLE PRIOR NOTICE OF ITS
INTENTION TO DISCLOSE SUCH INFORMATION;
(E)
TO A PARTY'S ACCOUNTANTS, LEGAL
COUNSEL AND OTHER FINANCIAL AND LEGAL ADVISORS, SUBJECT TO OBLIGATIONS OF
CONFIDENTIALITY;
(f)
as required during the course of
litigation, subject to protective orders or other similar protections as
applicable; or
(g)
to a [***] in connection with a [***]
or [***], of or with [***] provided that such disclosure shall be (i) on a
strictly limited, need-to-know basis, (ii) when such [***] is [***] to [***],
and (iii) on terms applicable to the most confidential information disclosed by
such party in connection with such [***] provided such terms are at least as
restrictive as set forth herein;
provided, however, that prior to any such disclosure pursuant to paragraphs
(c) and/or (f) hereof, the party seeking to make such disclosure shall notify
the other party and take reasonable actions in an effort to minimize the nature
and extent of such disclosure.
6.3
NOTICES. ALL NOTICES REQUIRED OR PERMITTED
TO BE GIVEN HEREUNDER SHALL BE IN WRITING AND SHALL BE DELIVERED BY HAND, OR IF
DISPATCHED BY PREPAID