WILL BE DEEMED TO BE THE CONFIDENTIAL INFORMATION OF
ONTOCHEM; (III) ANIXA WILL NOT OWE ANY FURTHER ANNUAL FEES UNDER SECTION 3.2 FOR
SUCH TERMINATED SCAFFOLD; AND (IV) THIS AGREEMENT WILL OTHERWISE REMAIN IN FULL
FORCE AND EFFECT.
4.4
TERMINATION FOR CAUSE.
THIS AGREEMENT MAY BE TERMINATED BY
EITHER PARTY FOR MATERIAL BREACH BY THE OTHER PARTY, PROVIDED THAT THE
TERMINATING PARTY HAS GIVEN THE BREACHING PARTY WRITTEN NOTICE OF THE BREACH AND
AT LEAST SIXTY (60) DAYS TO CURE THE BREACH PRIOR TO THE EFFECTIVE DATE OF
TERMINATION.
4.5
EFFECTS OF TERMINATION.
PROMPTLY FOLLOWING EXPIRATION OR
TERMINATION OF THIS AGREEMENT, ONTOCHEM WILL PROVIDE ANIXA WITH AN INVOICE
(INCLUDING REASONABLE SUPPORTING DOCUMENTATION) FOR ANY PRE-APPROVED
OUT-OF-POCKET EXPENSES (INCLUDING NON-CANCELLABLE COMMITMENTS) INCURRED BY
ONTOCHEM IN PERFORMING THE RESEARCH PLAN AND NOT YET REIMBURSED BY ANIXA, AND
ANIXA WILL PAY SUCH INVOICE WITHIN THIRTY (30) DAYS AFTER RECEIPT THEREOF.
IN
ADDITION, IF THIS AGREEMENT IS TERMINATED PRIOR TO COMPLETION OF THE RESEARCH
PROGRAM, ONTOCHEM WILL PROMPTLY FURNISH TO ANIXA ANY DELIVERABLE OR OTHER WORK
PRODUCT GENERATED TO DATE AND NOT PREVIOUSLY PROVIDED TO ANIXA, INCLUDING WORK
IN PROCESS.
5
--------------------------------------------------------------------------------
4.6
SURVIVAL.
EXPIRATION OR TERMINATION OF THIS AGREEMENT WILL
NOT AFFECT THE RIGHTS AND OBLIGATIONS OF THE PARTIES THAT ACCRUED PRIOR TO THE
EFFECTIVE DATE OF SUCH EXPIRATION OR TERMINATION.
THE FOLLOWING PROVISIONS WILL
REMAIN IN EFFECT FOLLOWING EXPIRATION OR TERMINATION OF THIS AGREEMENT AND THE
PARTIES WILL CONTINUE TO BE BOUND THEREBY:
SECTIONS 2.4 (LAST THREE SENTENCES),
2.7, 2.8 (LAST SENTENCE ONLY), 3.2, 3.3, 3.4, 3.5, 4.5, 4.6, 5, 6, 8 AND 9.
5.
CONFIDENTIALITY.
5.1
DEFINITION.
"CONFIDENTIAL INFORMATION" MEANS ANY INFORMATION
DISCLOSED (DIRECTLY OR INDIRECTLY) BY A PARTY (IN SUCH CAPACITY, "DISCLOSER") TO
THE OTHER PARTY (IN SUCH CAPACITY, "RECIPIENT") IN CONNECTION WITH THIS
AGREEMENT WHETHER IN WRITTEN, GRAPHIC, ELECTRONIC, TANGIBLE OR ANY OTHER FORM.
CONFIDENTIAL INFORMATION WILL NOT, HOWEVER, INCLUDE ANY INFORMATION THAT:
(A)
WAS PUBLICLY KNOWN OR GENERALLY AVAILABLE TO THE PUBLIC PRIOR TO THE TIME OF
DISCLOSURE BY DISCLOSER TO RECIPIENT; (B) BECOMES PUBLICLY KNOWN OR GENERALLY
AVAILABLE TO THE PUBLIC AFTER DISCLOSURE BY DISCLOSER TO RECIPIENT THROUGH NO
WRONGFUL ACTION OR INACTION OF RECIPIENT; (C) IS IN THE RIGHTFUL POSSESSION OF
RECIPIENT WITHOUT CONFIDENTIALITY OBLIGATIONS AT THE TIME OF DISCLOSURE BY
DISCLOSER TO RECIPIENT AS SHOWN BY RECIPIENT'S THEN-CONTEMPORANEOUS WRITTEN
FILES AND RECORDS KEPT IN THE ORDINARY COURSE OF BUSINESS; (D) IS OBTAINED BY
RECIPIENT FROM A THIRD PARTY WITHOUT AN ACCOMPANYING DUTY OF CONFIDENTIALITY AND
WITHOUT (TO RECIPIENT'S KNOWLEDGE) A BREACH OF SUCH THIRD PARTY'S OBLIGATIONS OF
CONFIDENTIALITY; OR (E) IS INDEPENDENTLY DEVELOPED BY RECIPIENT WITHOUT USE OF
OR REFERENCE TO DISCLOSER'S CONFIDENTIAL INFORMATION.
NOTWITHSTANDING ANYTHING
TO THE CONTRARY IN THIS AGREEMENT, EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4.3
WITH RESPECT TO A TERMINATED SCAFFOLD, THE IDENTITY, STRUCTURE AND SAR
INFORMATION OF:
(I) THE HIT COMPOUNDS WILL BE DEEMED TO BE THE CONFIDENTIAL
INFORMATION OF BOTH PARTIES UNTIL THE SELECTION DEADLINE, PROVIDED THAT, DURING
SUCH PERIOD, ANIXA (ITSELF OR THROUGH ONE OR MORE THIRD PARTY