NOT MADE WITHIN THE TIME
PERIOD SET FORTH IN SECTION 4.3.1(C), INCLUDING UNDERPAYMENTS DISCOVERED DURING
AN AUDIT, AND ALL MILESTONE PAYMENTS NOT MADE WITHIN THE TIME PERIOD SPECIFIED
IN SECTION 4.3.1, SHALL BEAR INTEREST AT A RATE OF * PERCENT (*%) PER MONTH FROM
THE DUE DATE UNTIL PAID IN FULL OR, IF LESS, THE MAXIMUM INTEREST RATE PERMITTED
BY APPLICABLE LAWS.
ANY SUCH OVERDUE ROYALTY OR MILESTONE PAYMENT SHALL, WHEN
MADE, BE ACCOMPANIED BY, AND CREDITED FIRST TO, ALL INTEREST SO ACCRUED.
4.3.4
PAYMENTS; WITHHOLDING TAX.
(A)
PAYMENTS IN U.S. DOLLARS.
ALL PAYMENTS MADE BY DS UNDER THIS
ARTICLE 4 SHALL BE MADE BY WIRE TRANSFER IN U.S. DOLLARS IN ACCORDANCE WITH
INSTRUCTIONS GIVEN IN WRITING FROM TIME TO TIME BY ARQULE.
(B)
WITHHOLDING TAXES.
IF APPLICABLE LAWS REQUIRE WITHHOLDING OF
INCOME OR OTHER TAXES IMPOSED UPON ANY PAYMENTS MADE BY DS TO ARQULE UNDER THIS
AGREEMENT, DS SHALL (I) MAKE SUCH WITHHOLDING PAYMENTS AS MAY BE REQUIRED,
(II) SUBTRACT SUCH WITHHOLDING PAYMENTS FROM SUCH PAYMENTS, (III) SUBMIT
APPROPRIATE PROOF OF PAYMENT OF THE WITHHOLDING TAXES TO ARQULE WITHIN A
REASONABLE PERIOD OF TIME, AND (IV) PROMPTLY PROVIDE ARQULE WITH ALL OFFICIAL
RECEIPTS WITH RESPECT THERETO.
DS SHALL RENDER ARQULE REASONABLE ASSISTANCE IN
ORDER TO ALLOW ARQULE TO OBTAIN THE BENEFIT OF ANY PRESENT OR FUTURE TREATY
AGAINST DOUBLE TAXATION WHICH MAY APPLY TO SUCH PAYMENTS.
4.3.5
FOREIGN CURRENCY EXCHANGE.
ALL PAYMENTS TO BE MADE BY DS TO ARQULE
OR BY ARQULE TO DS UNDER THIS AGREEMENT SHALL BE MADE IN UNITED STATES DOLLARS
AND SHALL BE PAID BY BANK WIRE TRANSFER TO SUCH BANK ACCOUNT AS MAY BE
DESIGNATED IN WRITING BY THE OTHER PARTY FROM TIME TO TIME.
IF, IN ANY CALENDAR
QUARTER, NET SALES ARE MADE IN ANY CURRENCY OTHER THAN UNITED STATES DOLLARS,
SUCH NET SALES SHALL BE CONVERTED INTO UNITED STATES
68
DOLLARS USING THE CONVERSION RATE AS OF THE LAST DAY OF SUCH CALENDAR QUARTER AS
PUBLISHED IN THE WALL STREET JOURNAL.
5.
CONFIDENTIALITY
5.1
Confidentiality.
5.1.1
CONFIDENTIALITY OBLIGATIONS.
ARQULE AND DS EACH RECOGNIZES THAT
THE OTHER PARTY'S CONFIDENTIAL INFORMATION AND PROPRIETARY MATERIALS CONSTITUTE
HIGHLY VALUABLE ASSETS OF SUCH OTHER PARTY.
ARQULE AND DS EACH AGREES THAT,
SUBJECT TO SECTIONS 5.1.2 AND 5.3, (A) IT WILL NOT DISCLOSE, AND WILL CAUSE ITS
AFFILIATES AND SUBLICENSES (OR SUBLICENSEES, AS THE CASE MAY BE) NOT TO
DISCLOSE, ANY CONFIDENTIAL INFORMATION OR PROPRIETARY MATERIALS OF THE OTHER
PARTY, AND (B) IT WILL NOT USE, AND WILL CAUSE ITS AFFILIATES AND SUBLICENSEES
NOT TO USE, ANY CONFIDENTIAL INFORMATION OR PROPRIETARY MATERIALS OF THE OTHER
PARTY EXCEPT AS EXPRESSLY PERMITTED HEREUNDER.
THE OBLIGATIONS OF EACH PARTY
UNDER THIS SECTION 5.1.1 SHALL REMAIN IN EFFECT DURING THE TERM AND FOR AN
ADDITIONAL TEN (10) YEARS FOLLOWING THE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
5.1.2
LIMITED DISCLOSURE.
ARQULE AND DS EACH AGREES THAT DISCLOSURE OF
ITS CONFIDENTIAL INFORMATION OR ANY TRANSFER OF ITS PROPRIETARY MATERIALS MAY BE
MADE BY THE OTHER PARTY TO (A) ANY EMPLOYEE, CONSULTANT OR AFFILIATE