PARTY") RECEIVING
CONFIDENTIAL INFORMATION OF THE OTHER PARTY (THE "DISCLOSING PARTY") SHALL
(I) MAINTAIN IN CONFIDENCE SUCH CONFIDENTIAL INFORMATION USING NOT LESS THAN THE
EFFORTS SUCH RECEIVING PARTY USES TO MAINTAIN IN CONFIDENCE OTHER PROPRIETARY
INDUSTRIAL INFORMATION OF SIMILAR KIND AND VALUE, (II) NOT DISCLOSE SUCH
CONFIDENTIAL INFORMATION EXCEPT TO THE RECEIVING PARTY'S EMPLOYEES HAVING A
NEED-TO-KNOW SUCH CONFIDENTIAL INFORMATION SOLELY FOR PURPOSES OF PERFORMING
RECEIVING PARTY'S OBLIGATIONS UNDER THIS AGREEMENT, (III) NOT DISCLOSE SUCH
CONFIDENTIAL INFORMATION TO ANY THIRD PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF
THE DISCLOSING PARTY, EXCEPT FOR DISCLOSURES EXPRESSLY PERMITTED BY THIS
AGREEMENT, AND (IV) NOT USE SUCH CONFIDENTIAL INFORMATION FOR ANY PURPOSE EXCEPT
THOSE EXPRESSLY PERMITTED BY THIS AGREEMENT.
FOR AVOIDANCE OF DOUBT,
PHARMACOPEIA SHALL BE PERMITTED TO USE THE BMS CONFIDENTIAL INFORMATION SOLELY
FOR PURPOSES OF PERFORMING THE RESEARCH PROGRAM IN ACCORDANCE WITH THE RESEARCH
PLAN AND FOR NO OTHER PURPOSE.
UPON COMPLETION OF THE RESEARCH PROGRAM OR
EARLIER UPON WRITTEN REQUEST BY BMS, PHARMACOPEIA SHALL RETURN TO BMS OR DESTROY
ANY BMS CONFIDENTIAL INFORMATION, WITH THE UNDERSTANDING THAT PHARMACOPEIA WILL
BE ENTITLED TO RETAIN ONE (1) COPY OF BMS CONFIDENTIAL INFORMATION IN THE FILES
OF ITS LEGAL COUNSEL SOLELY FOR ARCHIVAL PURPOSES.
15
SECTION 7.2
AUTHORIZED DISCLOSURE.
TO THE
EXTENT (AND ONLY TO THE EXTENT) THAT IT IS REASONABLY NECESSARY OR APPROPRIATE
TO FULFILL ITS OBLIGATIONS OR EXERCISE ITS RIGHTS UNDER THIS AGREEMENT, A PARTY
MAY DISCLOSE CONFIDENTIAL INFORMATION BELONGING TO THE OTHER PARTY IN THE
FOLLOWING INSTANCES:
(a)
filing or prosecuting patent
applications in accordance with this Agreement;
(b)
made to the Regulatory Authorities as
necessary for the development or commercialization of a Product in a country, as
required in connection with any filing, application or request for regulatory
approval; provided, however, that reasonable measures will be taken to assure
confidential treatment of such information;
(c)
prosecuting or defending litigation;
(d)
complying with applicable governmental
laws and regulations (including, without limitation, the rules and regulations
of the Securities and Exchange Commission or any national securities exchange,
and compliance with tax laws and regulations) and with judicial process, if
(i) in the reasonable opinion of the Receiving Party's counsel, such disclosure
is necessary for such compliance and (ii) such disclosure is made in accordance
with Section 7.3 or 7.4 as applicable; and
(e)
disclosure, in connection with the
performance of this Agreement and solely on a need-to-know basis, to Affiliates,
potential or actual collaborators (including potential licensees), potential or
actual investment bankers, investors, lenders, or acquirers, or employees,
independent contractors (including without limitation consultants and clinical
investigators) or agents, each of whom prior to disclosure must be bound by
written obligations of confidentiality and non-use no less restrictive than the
obligations set forth in this Article 7; provided, however, that the Receiving
Party shall remain responsible for any failure by any Person who receives
Confidential Information pursuant to this Article 7 to treat such Confidential
Information as required under this Article 7.
If and whenever any Confidential Information is disclosed in