AND ALL LIABILITIES AND EXPENSES (INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND OTHER EXPENSES OF LITIGATION)
INCURRED BY SUCH OTHER PARTY AS A RESULT OF SUCH ENFORCEMENT ACTION.
9.7.2
INFORMATION.
ABSENT A LITIGATION AGREEMENT, THE PARTY
INITIATING OR DEFENDING ANY SUCH ENFORCEMENT ACTION SHALL KEEP THE OTHER PARTY
HERETO REASONABLY INFORMED OF THE PROGRESS OF ANY SUCH ENFORCEMENT ACTION, AND
SUCH OTHER PARTY SHALL HAVE THE RIGHT TO PARTICIPATE WITH COUNSEL OF ITS OWN
CHOICE AT ITS OWN EXPENSE.
9.7.3
ENFORCEMENT COSTS; RECOVERIES.
UNLESS OTHERWISE
AGREED,
THE PARTY INITIATING AN ENFORCEMENT ACTION SHALL, AT THE OPTION OF SUCH
PARTY, HAVE THE RIGHT TO EITHER: (I) ASSUME RESPONSIBILITY FOR ALL COSTS AND
EXPENSES OF SUCH ENFORCEMENT ACTION, IN WHICH CASE ALL AMOUNTS RECOVERED IN THE
ENFORCEMENT ACTION (INCLUDING WITHOUT LIMITATION AMOUNTS RESULTING FROM A
SETTLEMENT THEREOF) SHALL BE RETAINED BY SUCH PARTY; OR (II) INCLUDE SUCH COSTS
AND EXPENSES WITHIN THE DEVELOPMENT COSTS, IN WHICH CASE ALL AMOUNTS RECOVERED
IN THE ENFORCEMENT ACTION, AFTER REIMBURSING THE PARTY INITIATING THE ACTION FOR
ANY COSTS AND EXPENSES NOT PREVIOUSLY SO OFFSET, SHALL BE SHARED BY BIOMARIN AND
GENZYME IN ACCORDANCE WITH THEIR RESPECTIVE PERCENTAGE INTERESTS.
9.8 THIRD PARTY RIGHTS.
THE FOREGOING PROVISIONS OF THIS ARTICLE 9 SHALL BE
SUBJECT TO AND LIMITED BY ANY AGREEMENTS PURSUANT TO WHICH BIOMARIN AND GENZYME,
AS THE CASE MAY BE, ACQUIRED ANY PARTICULAR BIOMARIN PATENT RIGHTS, BIOMARIN
TECHNOLOGY OR GENZYME PATENT RIGHTS OR GENZYME TECHNOLOGY.
9.9 THIRD PARTY AGREEMENTS - REPORTS.
TO THE EXTENT THAT A PARTY IS OBLIGATED TO
PROVIDE REPORTS TO A THIRD PARTY PURSUANT TO A THIRD PARTY AGREEMENT AS A RESULT
OF OR REPORTING ON THE STATUS OF ACTIVITIES OF THE OTHER PARTY HEREUNDER, THE
OTHER PARTY HERETO SHALL REASONABLY ASSIST THE REPORTING PARTY BY PROVIDING
INFORMATION IN ITS POSSESSION OR CONTROL AND IN SUFFICIENT DETAIL TO COMPLETE
AND SUBMIT SUCH REPORTS AS REQUIRED.
[**] = Portions of this exhibit have been omitted pursuant to a confidential
treatment request.
An unredacted version of this exhibit has been filed
separately with the Commission.
27
ARTICLE X
CONFIDENTIALITY
10.1
NONDISCLOSURE OBLIGATIONS.
EXCEPT AS OTHERWISE
PROVIDED IN THIS ARTICLE 10, DURING THE TERM AND FOR A PERIOD OF FIVE (5) YEARS
THEREAFTER, THE PARTIES SHALL, AND BIOMARIN SHALL CAUSE BIOMARIN GENETICS TO,
MAINTAIN IN CONFIDENCE AND USE ONLY FOR PURPOSES SPECIFICALLY AUTHORIZED UNDER
THIS AGREEMENT ANY INFORMATION FURNISHED TO IT BY THE OTHER PARTY HERETO
PURSUANT TO THIS AGREEMENT WHICH IF DISCLOSED IN TANGIBLE FORM IS MARKED
"CONFIDENTIAL" OR WITH OTHER SIMILAR DESIGNATION TO INDICATE ITS CONFIDENTIAL OR
PROPRIETARY NATURE OR IF DISCLOSED ORALLY OR BY INSPECTION IS INDICATED ORALLY
TO BE CONFIDENTIAL OR PROPRIETARY BY THE PARTY DISCLOSING SUCH INFORMATION AT
THE TIME OF SUCH DISCLOSURE AND IS CONFIRMED IN WRITING AS CONFIDENTIAL OR
PROPRIETARY BY THE DISCLOSING PARTY (DESCRIBING IN REASONABLE DETAIL THE
INFORMATION TO BE TREATED AS CONFIDENTIAL) WITHIN A REASONABLE TIME AFTER SUCH
DISCLOSURE (COLLECTIVELY, "INFORMATION").
To the extent it is reasonably necessary or appropriate to fulfill its
obligations or exercise its rights