OF THIRD PARTY
PATENTS.
IF A CLAIM ALLEGING INFRINGEMENT OF THIRD PARTY PATENTS IS MADE
AGAINST CEPHALON, THEN CEPHALON SHALL DEFEND AGAINST SUCH A CLAIM AT ITS COST
AND EXPENSE, BUT ACUSPHERE MAY BE REPRESENTED IN SUCH EVENT BY LEGAL COUNSEL IN
AN ADVISORY CAPACITY AT ITS OWN EXPENSE.
CEPHALON SHALL KEEP ACUSPHERE INFORMED
OF THE STATUS OF THE CASE.
SECTION 3.4
COOPERATION.
IN THE EVENT THAT
EITHER CEPHALON OR ACUSPHERE TAKES ACTION PURSUANT TO SECTION 4.2 OR SECTION 4.3
ABOVE, THE OTHER PARTY SHALL COOPERATE WITH THE PARTY SO ACTING TO THE EXTENT
REASONABLY POSSIBLE.
Article IV
CONFIDENTIALITY
SECTION 4.1
CONFIDENTIAL INFORMATION.
ALL
CONFIDENTIAL INFORMATION DISCLOSED BY ACUSPHERE TO CEPHALON DURING THE TERM OF
THIS AGREEMENT SHALL NOT BE USED BY CEPHALON EXCEPT IN CONNECTION WITH THE
ACTIVITIES CONTEMPLATED BY THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE
LICENSES GRANTED PURSUANT TO SECTION 2.1), SHALL BE MAINTAINED IN CONFIDENCE BY
CEPHALON (EXCEPT TO THE EXTENT REASONABLY NECESSARY IN CONNECTION WITH
REGULATORY FILINGS RELATING TO AI-850TM AND/OR RELATING TO PRACTICING THE
LICENSED PATENT RIGHTS OR LICENSED KNOW-HOW IN THE FIELD; FOR THE FILING,
PROSECUTION AND MAINTENANCE OF PATENT RIGHTS; OR TO DEVELOP AND COMMERCIALIZE
PRODUCTS COVERED BY THE LICENSED PATENT RIGHTS OR LICENSED KNOW-HOW IN THE
FIELD), AND SHALL NOT OTHERWISE BE DISCLOSED BY CEPHALON TO ANY OTHER PERSON,
FIRM, OR AGENCY, GOVERNMENTAL OR PRIVATE (EXCEPT CONSULTANTS, ADVISORS AND
AFFILIATES IN ACCORDANCE WITH SECTION 5.2), WITHOUT THE PRIOR WRITTEN CONSENT OF
ACUSPHERE, EXCEPT TO THE EXTENT THAT THE CONFIDENTIAL INFORMATION:
(A)
WAS KNOWN OR USED BY CEPHALON OR ITS
AFFILIATES PRIOR TO ITS DATE OF DISCLOSURE TO CEPHALON; OR
6
(B)
EITHER BEFORE OR AFTER THE DATE OF THE
DISCLOSURE TO CEPHALON IS LAWFULLY DISCLOSED TO CEPHALON OR ITS AFFILIATES BY
SOURCES OTHER THAN ACUSPHERE RIGHTFULLY IN POSSESSION OF THE CONFIDENTIAL
INFORMATION; OR
(C)
EITHER BEFORE OR AFTER THE DATE OF THE
DISCLOSURE TO CEPHALON BECOMES PUBLISHED OR GENERALLY KNOWN TO THE PUBLIC
THROUGH NO FAULT OR OMISSION ON THE PART OF CEPHALON; OR
(D)
IS INDEPENDENTLY DEVELOPED BY OR FOR
CEPHALON OR ITS AFFILIATES WITHOUT REFERENCE TO OR RELIANCE UPON THE
CONFIDENTIAL INFORMATION; OR
(E)
IS REQUIRED TO BE DISCLOSED BY CEPHALON OR
ITS AFFILIATES TO COMPLY WITH APPLICABLE LAWS OR REGULATIONS, TO DEFEND OR
PROSECUTE LITIGATION OR TO COMPLY WITH LEGAL PROCESS.
SECTION 4.2
EMPLOYEE, CONSULTANT AND
ADVISOR OBLIGATIONS.
CEPHALON AGREES THAT IT AND ITS AFFILIATES SHALL PROVIDE
CONFIDENTIAL INFORMATION RECEIVED FROM ACUSPHERE ONLY TO ITS AND THEIR
RESPECTIVE EMPLOYEES, CONSULTANTS AND ADVISORS WHO HAVE A NEED TO KNOW SUCH
CONFIDENTIAL INFORMATION.
SECTION 4.3
TERM.
ALL OBLIGATIONS OF
CONFIDENTIALITY IMPOSED UNDER THIS ARTICLE V SHALL EXPIRE TEN (10) YEARS
FOLLOWING TERMINATION OR EXPIRATION OF THIS AGREEMENT.
Article V
REPRESENTATIONS AND WARRANTIES
SECTION 5.1
REPRESENTATIONS OF AUTHORITY.
CEPHALON AND ACUSPHERE EACH REPRESENTS AND WARRANTS TO THE OTHER THAT AS OF THE
EFFECTIVE DATE IT HAS FULL RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS
AGREEMENT AND TO PERFORM ITS RESPECTIVE OBLIGATIONS UNDER THIS AGREEMENT.
SECTION 5.2
CONSENTS.
CEPHALON AND
ACUSPHERE