+41 (0) 21 804 8000
Facsimile: +41 (0) 21 804 8001
Attention: Managing Director
If to BIG, to
Karen G. Krasney, Esq.
General Counsel
Biosensors International
20280 Acacia Street, Ste. 300
Newport Beach, CA 92660
Telephone: (949) 553-8300 Ext. 254
Facsimile: (949) 553-9129
36
with a copy to
(which will not constitute notice to either BESA or BIG) to:
Paul, Hastings, Janofsky & Walker LLP
515 South Flower Street, 25th Floor
Los Angeles, CA 90071-2371
Telephone: (213) 683-6000
Facsimile: (213) 627-0705
Attention: Rob R. Carlson, Esq.
if to XTENT, to:
XTENT, Inc.
125 Constitution Drive
Menlo Park, CA 94025
Telephone: (650) 475-9400
Facsimile: (650) 475-9401
Attention: Greg Casciaro, Chief Executive Officer
with a copy (which will not constitute notice to XTENT) to:
Jeff Grainger, Esq.
125 Constitution Drive
Menlo Park, CA 94025
Telephone: (650) 475-9400
Facsimile: (650) 475-9401
and in any case at such other address as a Party may specify by written notice.
All periods of notice will be measured from the date of deemed delivery as
provided in this Section.
12.3
PUBLICITY AND DISCLOSURE OF RESTATED AGREEMENT.
NO
PRESS RELEASES OR ANY PUBLIC DISCLOSURE, EITHER WRITTEN OR ORAL, OF THE
TRANSACTIONS CONTEMPLATED BY THIS RESTATED AGREEMENT MAY BE MADE THAT DISCLOSES
INFORMATION ABOUT THIS RESTATED AGREEMENT WITHOUT THE MUTUAL CONSENT OF THE
PARTIES, EXCEPT TO ANNOUNCE THE EXECUTION OF THIS RESTATED AGREEMENT OR TO THE
EXTENT REQUIRED BY APPLICABLE LAW, RULE OR REGULATION (INCLUDING STOCK EXCHANGE
REQUIREMENT).
EITHER PARTY MAY DISCLOSE THE EXISTENCE OF THIS RESTATED
AGREEMENT, BUT MAY NOT DISCLOSE THE TERMS WITHOUT THE OTHER PARTY'S WRITTEN
CONSENT, EXCEPT
(I) AS REQUIRED BY LAW OR BY A COURT OR OTHER GOVERNMENTAL
BODY; (II) IN CONFIDENCE TO LEGAL COUNSEL, ACCOUNTANTS, OR BANKS; (III) IN
CONFIDENCE AND USING SOUND DISCRETION, TO ACTUAL AND POTENTIAL FINANCING SOURCES
AND THEIR ADVISORS; (IV) IN CONFIDENCE, IN CONNECTION WITH THE ENFORCEMENT OF
THIS RESTATED AGREEMENT OR RIGHTS UNDER THIS RESTATED AGREEMENT; (V) IN
CONFIDENCE, IN CONNECTION WITH A MERGER, ACQUISITION OF STOCK OR ASSETS,
PROPOSED MERGER OR ACQUISITION, OR THE LIKE; OR (VI) AS ADVISABLE OR REQUIRED IN
CONNECTION WITH ANY GOVERNMENT OR REGULATORY FILINGS, INCLUDING, WITHOUT
LIMITATION, FILINGS WITH THE SEC OR SGX AND IN CONNECTION WITH AN INITIAL PUBLIC
OFFERING; PROVIDED THAT TO THE EXTENT SUCH A RELEASE OF INFORMATION IS REQUIRED
BY APPLICABLE LAW, RULE OR REGULATION (INCLUDING STOCK EXCHANGE REQUIREMENT),
THE DISCLOSING PARTY WILL USE COMMERCIALLY REASONABLE EFFORTS TO ENSURE THAT THE
CONTENT IS ACCURATE AND IN ACCORDANCE
37
WITH REASONABLE BUSINESS STANDARDS AND WILL, TO THE EXTENT PRACTICABLE, PROVIDE
THE OTHER PARTY WITH ADVANCE NOTICE OF THE PROPOSED DISCLOSURE AND AN
OPPORTUNITY TO REVIEW AND COMMENT UPON SUCH DISCLOSURE.
NOTWITHSTANDING THE
FOREGOING, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO PERMIT ANY DISCLOSURE
BY XTENT OF BESA'S CONFIDENTIAL INFORMATION RELATED TO BESA'S DRUG/POLYMER
COMPOSITE FORMULATION, BIOLIMUS A9 OR BESA'S POLYMER COATING FOLLOWING THE
EXECUTION OF THIS RESTATED AGREEMENT, WHICH IS HEREBY PROHIBITED UNDER ALL
CIRCUMSTANCES WITHOUT THE PRIOR WRITTEN APPROVAL OF BESA.
12.4
ENTIRE AGREEMENT.
THIS RESTATED