under the Corporate Services Agreement, to the extent any
assets used in the Business on or prior to the Closing Date (including the
Business IP and the Ibis Contracts) or necessary to conduct the Business as
conducted on and prior to the Closing Date (including the Business IP and the
Ibis Contracts) or as contemplated to be conducted after the Closing Date have
not been duly and fully transferred to Ibis as of such date, Isis hereby
covenants, at its sole cost and expense and without further consideration by
AMI, to take all such actions as may be requested by AMI to promptly transfer
such assets to Ibis or AMI's designee.
49
8.8
Confidentiality.
(A)
EACH PARTY AGREES THAT FOR A PERIOD OF THREE (3) YEARS AFTER THE CLOSING
DATE, A PARTY (THE "RECEIVING PARTY") RECEIVING OR THAT HAS RECEIVED
CONFIDENTIAL INFORMATION OF THE OTHER PARTY (THE "DISCLOSING PARTY") WILL
(I) MAINTAIN AND CAUSE ITS REPRESENTATIVES TO MAINTAIN IN CONFIDENCE SUCH
CONFIDENTIAL INFORMATION USING NOT LESS THAN THE EFFORTS SUCH RECEIVING PARTY
USES TO MAINTAIN IN CONFIDENCE OTHER PROPRIETARY INFORMATION OF SIMILAR KIND AND
VALUE (IT BEING UNDERSTOOD AND AGREED THAT AMI SHALL HAVE NO OBLIGATION TO
MAINTAIN THE CONFIDENTIALITY OF ANY IBIS CONFIDENTIAL INFORMATION AND THAT ISIS
SHALL HAVE AN OBLIGATION TO MAINTAIN THE CONFIDENTIALITY OF ALL IBIS
CONFIDENTIAL INFORMATION PURSUANT TO THIS SECTION 8.8), (II) NOT DISCLOSE SUCH
CONFIDENTIAL INFORMATION EXCEPT TO THE RECEIVING PARTY'S EMPLOYEES OR AFFILIATES
HAVING A NEED-TO-KNOW SUCH CONFIDENTIAL INFORMATION SOLELY FOR PURPOSES OF
PERFORMING THE RECEIVING PARTY'S OBLIGATIONS UNDER THE TRANSACTION DOCUMENTS,
(III) NOT DISCLOSE SUCH CONFIDENTIAL INFORMATION TO ANY PERSON WITHOUT THE PRIOR
WRITTEN CONSENT OF THE DISCLOSING PARTY, EXCEPT FOR DISCLOSURES EXPRESSLY
PERMITTED BY THE TRANSACTION DOCUMENTS, AND (IV) NOT USE SUCH CONFIDENTIAL
INFORMATION FOR ANY PURPOSE EXCEPT THOSE EXPRESSLY PERMITTED BY THE TRANSACTION
DOCUMENTS.
THE PROVISIONS OF THIS SECTION 8.8 SHALL SUPERSEDE THE PROVISIONS OF
SECTION 5.1, SECTION 5.2 AND SECTION 5.3 OF THE MASTER AGREEMENT WHICH SHALL
TERMINATE AND BE OF NO FURTHER FORCE OR EFFECT FROM AND AFTER THE CLOSING DATE.
UPON AMI'S REQUEST ISIS WILL RETURN OR DESTROY (AND CERTIFY TO AMI ANY SUCH
DESTRUCTION) ALL CONFIDENTIAL INFORMATION OF AMI OR ITS AFFILIATES AND UPON
ISIS' REQUEST, AMI WILL RETURN OR DESTROY (AND CERTIFY TO ISIS ANY SUCH
DESTRUCTION) ALL CONFIDENTIAL INFORMATION OF ISIS THAT IS NOT CONFIDENTIAL
INFORMATION OF IBIS; PROVIDED, THAT AMI MAY RETAIN ONE (1) COPY OF ISIS'
CONFIDENTIAL INFORMATION IN ABBOTT'S CONFIDENTIAL FILES.
(B)
TO THE EXTENT (AND ONLY TO THE EXTENT) THAT IT IS REASONABLY NECESSARY, A
PARTY MAY DISCLOSE CONFIDENTIAL INFORMATION BELONGING TO THE OTHER PARTY IN THE
FOLLOWING INSTANCES:
(I)
WHEN DEFENDING LITIGATION RELATED TO THE CONFIDENTIAL INFORMATION
TO BE DISCLOSED;
(II)
WHEN COMPLYING WITH APPLICABLE LAWS (INCLUDING, WITHOUT
LIMITATION, THE RULES AND REGULATIONS OF THE SEC OR ANY NATIONAL SECURITIES
EXCHANGE, AND COMPLIANCE WITH TAX LAWS) AND WITH JUDICIAL PROCESS; AND
(III)
DISCLOSURE, IN CONNECTION WITH THE PERFORMANCE OF THE TRANSACTION
DOCUMENTS AND SOLELY ON A NEED-TO-KNOW BASIS,