AS A PARTY TO THE SUIT.
SUCH
OTHER PARTY SHALL OFFER REASONABLE ASSISTANCE TO THE INITIATING PARTY IN
CONNECTION THEREWITH AT NO CHARGE TO THE INITIATING PARTY EXCEPT FOR
REIMBURSEMENT OF REASONABLE OUT-OF-POCKET EXPENSES INCURRED IN RENDERING SUCH
ASSISTANCE.
THE INITIATING PARTY SHALL ASSUME AND PAY ALL OF ITS OWN
OUT-OF-POCKET COSTS INCURRED IN CONNECTION WITH ANY LITIGATION OR PROCEEDINGS
INITIATED BY IT PURSUANT TO SECTIONS 6.3(B) AND 6.3(C), INCLUDING WITHOUT
LIMITATION THE FEES AND EXPENSES OF THE COUNSEL SELECTED BY IT.
THE OTHER PARTY
SHALL HAVE THE RIGHT TO PARTICIPATE AND BE REPRESENTED IN ANY SUCH SUIT BY ITS
OWN COUNSEL AT ITS OWN EXPENSE.
(E)
RECOVERIES.
WITH RESPECT TO ANY SUIT OR
ACTION REFERRED TO IN SECTIONS 6.3(B), ANY RECOVERY OBTAINED AS A RESULT OF ANY
SUCH PROCEEDING, BY SETTLEMENT OR OTHERWISE, SHALL BE APPLIED IN THE FOLLOWING
ORDER OF PRIORITY:
(I)
FIRST, THE PARTIES SHALL BE REIMBURSED FOR
ALL COSTS INCURRED IN CONNECTION WITH SUCH PROCEEDING PAID BY THE PARTIES AND
NOT OTHERWISE RECOVERED; AND
Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
Asterisks denote such omission.
18
(II)
SECOND, ANY REMAINDER SHALL BE TREATED AS IF
IT WERE NET SALES OF THE APPLICABLE LICENSED PRODUCT, SUBJECT TO THE SALES
MILESTONE AND ROYALTY PROVISIONS OF SECTION 5.5 AND 5.6.
ARTICLE 7
CONFIDENTIALITY
AND PUBLICITY
7.1
CONFIDENTIAL INFORMATION.
DURING THE TERM
OF THIS AGREEMENT AND FOR A PERIOD OF [*****] AFTER ANY TERMINATION OR
EXPIRATION THEREOF, EACH PARTY AGREES TO KEEP IN CONFIDENCE AND NOT TO DISCLOSE
TO ANY THIRD PARTY, OR USE FOR ANY PURPOSE, EXCEPT PURSUANT TO, AND IN ORDER TO
CARRY OUT, THE TERMS AND OBJECTIVES OF THIS AGREEMENT, ANY CONFIDENTIAL
INFORMATION OF THE OTHER PARTY.
AS USED HEREIN, "CONFIDENTIAL INFORMATION"
SHALL MEAN ALL TRADE SECRETS OR CONFIDENTIAL OR PROPRIETARY INFORMATION
DESIGNATED AS SUCH IN WRITING BY THE DISCLOSING PARTY, WHETHER BY LETTER OR BY
THE USE OF AN APPROPRIATE STAMP OR LEGEND, PRIOR TO OR AT THE TIME ANY SUCH
TRADE SECRET OR CONFIDENTIAL OR PROPRIETARY INFORMATION IS DISCLOSED BY THE
DISCLOSING PARTY TO THE RECEIVING PARTY.
NOTWITHSTANDING THE FOREGOING,
INFORMATION WHICH IS ORALLY OR VISUALLY DISCLOSED TO THE RECEIVING PARTY BY THE
DISCLOSING PARTY, OR IS DISCLOSED IN WRITING WITHOUT AN APPROPRIATE LETTER,
STAMP OR LEGEND, SHALL CONSTITUTE CONFIDENTIAL INFORMATION IF (I) IT WOULD BE
APPARENT TO A REASONABLE PERSON, FAMILIAR WITH THE DISCLOSING PARTY'S BUSINESS
AND THE INDUSTRY IN WHICH IT OPERATES, THAT SUCH INFORMATION IS OF A
CONFIDENTIAL OR PROPRIETARY NATURE, THE MAINTENANCE OF WHICH IS IMPORTANT TO THE
DISCLOSING PARTY, OR IF (II) THE DISCLOSING PARTY, WITHIN [*****] AFTER SUCH
DISCLOSURE, DELIVERS TO THE RECEIVING PARTY A WRITTEN DOCUMENT OR DOCUMENTS
DESCRIBING SUCH INFORMATION AND REFERENCING THE PLACE AND DATE OF SUCH ORAL,
VISUAL OR WRITTEN DISCLOSURE AND THE NAMES OF THE EMPLOYEES OR OFFICERS OF THE
RECEIVING PARTY TO WHOM SUCH DISCLOSURE WAS MADE.
THE RESTRICTIONS ON THE
DISCLOSURE AND USE OF CONFIDENTIAL INFORMATION SET FORTH IN THE FIRST SENTENCE
OF THIS SECTION 7.1