Party
will remain responsible for any failure by any Person who receives Confidential
Information pursuant to this Section 8.8 to treat such Confidential Information
as required under this Section 8.8.
(C)
IF AND WHENEVER ANY CONFIDENTIAL INFORMATION IS DISCLOSED IN
ACCORDANCE WITH THIS SECTION 8.8, SUCH DISCLOSURE WILL NOT CAUSE ANY SUCH
INFORMATION TO CEASE TO BE CONFIDENTIAL INFORMATION EXCEPT TO THE EXTENT THAT
SUCH PERMITTED DISCLOSURE RESULTS IN A PUBLIC DISCLOSURE OF SUCH INFORMATION
(OTHER THAN BY BREACH OF THIS AGREEMENT).
EXCEPT AS PROHIBITED BY LAW, THE
RECEIVING PARTY WILL NOTIFY THE DISCLOSING PARTY OF THE RECEIVING PARTY'S INTENT
TO MAKE SUCH DISCLOSURE PURSUANT TO CLAUSES (I) OR (II) OF
SECTION 8.8(B) SUFFICIENTLY PRIOR TO MAKING SUCH DISCLOSURE SO AS TO ALLOW THE
DISCLOSING PARTY ADEQUATE TIME TO TAKE WHATEVER ACTION THE DISCLOSING PARTY MAY
DEEM APPROPRIATE TO PROTECT THE CONFIDENTIALITY OF THE INFORMATION.
IN
ADDITION, IN THE EVENT ANY PARTY PROPOSES TO FILE WITH ANY GOVERNMENTAL
AUTHORITY A TRANSACTION DOCUMENT, INCLUDING, WITHOUT LIMITATION, AS AN EXHIBIT
TO A REGISTRATION STATEMENT, PERIODIC REPORT, OR CURRENT REPORT, THE PARTY
PROPOSING TO MAKE SUCH FILING WILL NOTIFY THE OTHER PARTIES OF SUCH INTENTION
AND WILL WORK IN GOOD FAITH WITH THE OTHER PARTIES TO OBTAIN CONFIDENTIAL
TREATMENT OF ANY MATERIAL TERMS OF THE TRANSACTION DOCUMENTS THAT SUCH OTHER
PARTIES REQUEST BE KEPT CONFIDENTIAL (EXCEPT TO THE EXTENT ADVISED BY COUNSEL OR
SUCH GOVERNMENTAL AUTHORITY THAT CONFIDENTIAL TREATMENT IS NOT AVAILABLE FOR
SUCH INFORMATION).
(D)
AT THE CLOSING, ISIS SHALL DELIVER TO AMI ALL CONFIDENTIAL
INFORMATION OF THE BUSINESS IN ISIS' OR ITS AFFILIATES' POSSESSION AND CONTROL
AND ALL COPIES THEREOF, IN WHATEVER FORM OR MEDIUM, INCLUDING, WITHOUT
LIMITATION, WRITTEN RECORDS, OPTICAL AND MAGNETIC MEDIA, AND ALL OTHER MATERIALS
CONTAINING ANY SUCH CONFIDENTIAL INFORMATION.
IF AMI REQUESTS, ISIS SHALL
PROMPTLY PROVIDE WRITTEN CONFIRMATION THAT ALL SUCH MATERIALS HAVE BEEN
DELIVERED TO AMI.
52
(E)
THE EXISTENCE AND THE TERMS AND CONDITIONS OF THE TRANSACTION
DOCUMENTS THAT THE PARTIES HAVE NOT SPECIFICALLY AGREED TO DISCLOSE PURSUANT TO
SECTION 8.8(B) OR SECTION 8.3 WILL BE CONSIDERED CONFIDENTIAL INFORMATION OF
BOTH PARTIES.
AMI AND, SUBJECT TO THE TERMS OF SECTION 7.8, ISIS MAY DISCLOSE
SUCH TERMS TO A BONA FIDE POTENTIAL INVESTOR, INVESTMENT BANKER, ACQUIRER,
MERGER PARTNER OR OTHER POTENTIAL BUSINESS PARTNER OF AMI OR ISIS, RESPECTIVELY,
AND THEIR ATTORNEYS AND AGENTS, PROVIDED, THAT EACH SUCH PERSON TO WHOM SUCH
INFORMATION IS TO BE DISCLOSED IS INFORMED OF THE CONFIDENTIAL NATURE OF SUCH
INFORMATION AND HAS ENTERED INTO A WRITTEN AGREEMENT WITH THE PARTY REQUIRING
SUCH PERSON TO KEEP SUCH INFORMATION CONFIDENTIAL.
8.9
Noncompetition and Nonsolicitation.
The
Parties hereby agree as follows:
(A)
NONCOMPETITION.
DURING THE PERIOD FROM THE DATE HEREOF TO AND
INCLUDING THE [***] ANNIVERSARY OF THE CLOSING DATE (THE "NONCOMPETE PERIOD"),
ISIS AND ITS AFFILIATES SHALL NOT ENGAGE IN AND SHALL NOT HAVE ANY AFFILIATION
WITH ANY PERSON THAT ENGAGES IN A LINE OF BUSINESS THAT COMPETES WITH THE
BUSINESS AS CONDUCTED ON AND PRIOR TO THE CLOSING DATE AND AS