BEFORE JANUARY 31, 2009, FACET SHALL DELIVER TO PDL THE LIST
OF FACET EMPLOYEES AND TERMINATED TRANSITION EMPLOYEES WHO HAVE EARNED A 2008
MERIT BONUS, ALONG WITH ANY SUPPORTING DOCUMENTATION REQUESTED BY PDL, WHICH
LIST SHALL SET FORTH OPPOSITE EACH SUCH PERSON'S NAME THE AMOUNT OF THE 2008
MERIT BONUS RECOMMENDED FOR EACH SUCH FACET EMPLOYEE OR TERMINATED TRANSITION
EMPLOYEE (THE "MERIT BONUS LIST").
PDL WILL REVIEW THE MERIT BONUS LIST
PROMPTLY, CONSIDER THE RECOMMENDATIONS OF FACET AND PRIOR TO FEBRUARY 15, 2009,
PDL SHALL PAY TO EACH FACET EMPLOYEE AND EACH TERMINATED TRANSITION EMPLOYEE
LISTED ON THE MERIT BONUS LIST SUCH 2008 MERIT BONUS AS PDL DEEMS APPROPRIATE;
PROVIDED, HOWEVER, THAT THE AGGREGATE AMOUNT OF SUCH 2008 MERIT BONUSES WHICH
PDL SHALL PAY TO ALL FACET EMPLOYEES AND TERMINATED TRANSITION EMPLOYEES SHALL
BE SIX MILLION SIX HUNDRED SEVENTY-FIVE THOUSAND EIGHT HUNDRED TWENTY-EIGHT
DOLLARS ($6,675,828).
ARTICLE VII
CONFIDENTIALITY
7.1
CONFIDENTIALITY.
(A)
NOTWITHSTANDING ANY TERMINATION OF THIS
AGREEMENT AND SUBJECT TO SECTION 7.2, FOR A PERIOD OF SEVEN (7) YEARS AFTER THE
DISTRIBUTION DATE, EACH PARTY AGREES TO HOLD, AND TO CAUSE ITS RESPECTIVE
SUBSIDIARIES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ACCOUNTANTS, COUNSEL AND
OTHER ADVISORS AND REPRESENTATIVES TO HOLD, IN STRICT CONFIDENCE, AND UNDERTAKE
ALL REASONABLE PRECAUTIONS TO SAFEGUARD AND PROTECT THE CONFIDENTIALITY OF, ALL
INFORMATION CONCERNING THE OTHER PARTY THAT IS IN ITS POSSESSION AFTER THE
DISTRIBUTION DATE OR FURNISHED BY THE OTHER PARTY OR ITS RESPECTIVE DIRECTORS,
OFFICERS, EMPLOYEES, AGENTS, ACCOUNTANTS, COUNSEL AND OTHER ADVISORS AND
REPRESENTATIVES AT ANY TIME PURSUANT TO THIS AGREEMENT, ANY ANCILLARY AGREEMENT
OR OTHERWISE, AND SHALL NOT USE ANY SUCH INFORMATION OTHER THAN FOR SUCH
PURPOSES AS SHALL BE EXPRESSLY PERMITTED HEREUNDER OR THEREUNDER, EXCEPT, IN
EACH CASE, TO THE EXTENT THAT SUCH INFORMATION HAS BEEN (I) IN THE PUBLIC DOMAIN
THROUGH NO FAULT OF SUCH PARTY, THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES,
AGENTS, ACCOUNTANTS, COUNSEL AND OTHER ADVISORS AND REPRESENTATIVES,
(II) LAWFULLY ACQUIRED FROM OTHER SOURCES, WHICH ARE NOT BOUND BY A
CONFIDENTIALITY OBLIGATION, BY SUCH PARTY OR THEIR RESPECTIVE SUBSIDIARIES, OR
(III) INDEPENDENTLY GENERATED WITHOUT REFERENCE TO ANY PROPRIETARY OR
CONFIDENTIAL INFORMATION OF THE OTHER PARTY.
(B)
EACH PARTY AGREES NOT TO RELEASE OR
DISCLOSE, OR PERMIT TO BE RELEASED OR DISCLOSED, ANY SUCH INFORMATION TO ANY
OTHER PERSON, EXCEPT ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ACCOUNTANTS,
COUNSEL AND OTHER ADVISORS AND REPRESENTATIVES
26
WHO NEED TO KNOW SUCH INFORMATION AND WHO ARE INFORMED AND ADVISED THAT THE
INFORMATION IS CONFIDENTIAL AND SUBJECT TO THE OBLIGATIONS HEREUNDER, EXCEPT IN
COMPLIANCE WITH SECTION 7.2.
WITHOUT LIMITING THE FOREGOING, WHEN ANY
INFORMATION IS NO LONGER NEEDED FOR THE PURPOSES CONTEMPLATED BY THIS AGREEMENT
OR ANY ANCILLARY AGREEMENT, EACH PARTY WILL PROMPTLY AFTER REQUEST OF THE OTHER
PARTY EITHER (I) DESTROY ALL COPIES OF THE INFORMATION IN SUCH PARTY'S
POSSESSION, CUSTODY OR CONTROL (INCLUDING ANY THAT MAY BE STORED IN ANY
COMPUTER, WORD PROCESSOR, OR SIMILAR DEVICE, TO THE EXTENT NOT COMMERCIALLY
IMPRACTICAL TO DESTROY SUCH COPIES) INCLUDING ANY COPIES, SUMMARIES, ANALYSES,
COMPILATIONS, REPORTS, EXTRACTS OR OTHER