RECEIVING
OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS WHO HAVE A NEED TO KNOW IN ORDER TO
CARRY OUT THE OBLIGATIONS UNDER THIS RESTATED AGREEMENT, PROVIDED EACH HAS
AGREED IN WRITING TO MAINTAIN THE CONFIDENTIALITY OF THE CONFIDENTIAL
INFORMATION IN A MANNER NO LESS PROTECTIVE THAN THAT SET FORTH HEREIN AND
"PERMITTED PERSONS" SHALL BE DEEMED TO INCLUDE THE AFFILIATES OF BESA. EACH
PARTY SHALL BE RESPONSIBLE FOR ENSURING COMPLIANCE WITH THE PROVISIONS CONTAINED
IN THIS SECTION 10.1 BY THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND
AGENTS.
(C)
THE RESTRICTIONS CONTAINED IN THIS SECTION 10.1
WILL NOT APPLY TO ANY DISCLOSURES BY BESA TO PROSPECTIVE INVESTORS, ACQUIRERS OR
OTHER FINANCING SOURCES IN PRIVATE BUSINESS DISCUSSIONS.
BESA WILL BE PERMITTED
TO DISCLOSE THE EXISTENCE OR TERMS OF THIS RESTATED AGREEMENT WITH ANY
PROSPECTIVE INVESTOR, ACQUIRER OR OTHER FINANCING SOURCE, SO LONG AS SUCH THIRD
PARTY HAS AGREED IN WRITING TO BE BOUND BY CONFIDENTIALITY PROVISIONS
SUBSTANTIALLY SIMILAR TO THOSE CONTAINED IN THIS SECTION 10.1.
NOTWITHSTANDING
THE FOREGOING, BESA SHALL NOT DISCLOSE, WITHOUT THE PRIOR WRITTEN CONSENT OF
XTENT, ANY CONFIDENTIAL INFORMATION RELATED TO XTENT'S STENT OR THE XTENT STENT
SYSTEM.
(D)
IN THE EVENT A RECEIVING PARTY IS REQUIRED TO
DISCLOSE CONFIDENTIAL INFORMATION OF THE DISCLOSING PARTY BY ANY APPLICABLE LAW,
REGULATION, LEGAL PROCESS, JUDICIAL ORDER OR BY ANY APPLICABLE ORDER OR
REQUIREMENT OF ANY GOVERNMENTAL OR REGULATORY AUTHORITY, IT MAY DO SO ONLY TO
THE EXTENT REQUIRED THEREBY; PROVIDED, HOWEVER,
33
THAT THE RECEIVING PARTY WILL (I) USE REASONABLE EFFORTS UNDER THE CIRCUMSTANCES
TO PROVIDE ADVANCE NOTICE TO THE DISCLOSING PARTY OF THE REQUIRED DISCLOSURE TO
ALLOW THE DISCLOSING PARTY AN OPPORTUNITY TO TAKE STEPS TO OBJECT TO, PREVENT OR
LIMIT ITS DISCLOSURE OR OBTAIN A PROTECTIVE OR OTHER SIMILAR ORDER WITH RESPECT
TO THE REQUIRED DISCLOSURE AND (II) RESTRICT DISCLOSURE TO ONLY THAT PORTION OF
THE CONFIDENTIAL INFORMATION THAT IS REQUIRED TO BE DISCLOSED.
(E)
THE RECEIVING PARTY AGREES THAT ITS OBLIGATIONS HEREUNDER ARE NECESSARY
AND REASONABLE TO PROTECT THE DISCLOSING PARTY'S BUSINESS INTERESTS AND THAT THE
UNAUTHORIZED DISCLOSURE OR USE OF THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION MAY CAUSE IRREPARABLE HARM AND SIGNIFICANT INJURY, THE DEGREE OF
WHICH MAY BE DIFFICULT TO ASCERTAIN.
THE RECEIVING PARTY FURTHER ACKNOWLEDGES
AND AGREES THAT IN THE EVENT OF ANY ACTUAL OR THREATENED BREACH OF THIS RESTATED
AGREEMENT, THE DISCLOSING PARTY MAY SEEK AN INJUNCTION ENJOINING ANY BREACH OR
THREATENED BREACH OF THIS RESTATED AGREEMENT, AS WELL AS THE RIGHT TO PURSUE ANY
AND ALL OTHER RIGHTS AND REMEDIES AVAILABLE AT LAW OR IN EQUITY FOR SUCH BREACH
OR THREATENED BREACH.
Upon the request of the disclosing Party and/or termination of this Restated
Agreement, the receiving Party will promptly return to the disclosing Party or
destroy all material embodying Confidential Information in its possession or
under its control, including all copies thereof, provided however, the receiving
Party shall be entitled to retain any such material that it is required to
maintain pursuant to applicable law or regulation.
ARTICLE XI
TERM AND TERMINATION OF AGREEMENT
11.1