PRIOR TO
SUBMISSION OF SCIENTIFIC PUBLICATIONS OR ABSTRACTS OF ORAL PRESENTATIONS.
THE
REVIEWING PARTY WILL HAVE THE RIGHT TO REQUEST THAT ANY OF ITS CONFIDENTIAL
INFORMATION BE DELETED FROM SUCH PUBLICATION OR PRESENTATION, AND THE DISCLOSING
PARTY WILL COMPLY WITH THAT REQUEST.
IF THE DISCLOSING PARTY DOES NOT RECEIVE
ANY FEEDBACK FROM THE REVIEWING PARTY WITHIN THAT 45-DAY PERIOD, THE DISCLOSING
PARTY WILL BE FREE TO PROCEED WITH THE PUBLICATION OR PRESENTATION EXCEPT THAT
NEITHER PARTY MAY PUBLISH ON THE OTHER PARTY'S PRODUCTS WITHOUT THE PRIOR
WRITTEN APPROVAL OF THE OTHER PARTY, WHICH MAY BE GIVEN AT THAT PARTY'S SOLE
DISCRETION.
8.3
PUBLICITY.
EXCEPT AS OTHERWISE PROVIDED HEREIN OR
REQUIRED BY LAW, NEITHER PARTY WILL ORIGINATE ANY PUBLICATION, NEWS RELEASE OR
OTHER PUBLIC ANNOUNCEMENT, WRITTEN OR ORAL, WHETHER IN THE PUBLIC PRESS, OR
STOCKHOLDERS' REPORTS, OR OTHERWISE, RELATING TO THIS AGREEMENT OR ACTIVITIES
CONDUCTED AS PART OF THE R&D PLAN, AND NEITHER PARTY WILL USE THE NAME,
TRADEMARK, TRADE NAME, LOGO OR LIKENESS OF THE OTHER PARTY OR ITS EMPLOYEES IN
ANY PUBLICITY, NEWS RELEASE OR DISCLOSURE RELATING TO THIS AGREEMENT, OR ITS
SUBJECT MATTER, WITHOUT THE PRIOR PERMISSION OF THE OTHER PARTY.
NOTWITHSTANDING THE FOREGOING, A CONTINUING PARTY MAY MAKE SUCH PUBLIC
DISCLOSURES AS IT DEEMS APPROPRIATE RELATED TO THE PRODUCT WITHOUT CONSENT OF
THE PARTY THAT OPTS OUT WITH RESPECT TO THAT PRODUCT, SO LONG AS SUCH DISCLOSURE
DOES NOT INVOLVE THE TRADEMARK, TRADE NAME, LOGO OR LIKENESS OF THE PARTY THAT
OPTS OUT.
8.4
QUIET PERIOD.
IN THE EVENT THAT EITHER PARTY (THE
"REGISTERING PARTY") SEEKS TO REGISTER ANY OF ITS SECURITIES WITH THE SECURITIES
AND EXCHANGE COMMISSION, THEN UPON THE REQUEST OF THE REGISTERING PARTY, THE
OTHER PARTY SHALL REFRAIN FROM IDENTIFYING THE REGISTERING PARTY IN ANY PRESS
RELEASE, ADVERTISEMENT, SPEECH OR ANY OTHER COMMUNICATION WHICH MIGHT BE DEEMED
A PROSPECTUS UNDER SECTION 5(B) OF THE SECURITIES ACT OF 1933 UNTIL SUCH TIME
THAT THE REGISTERING PARTY COMMUNICATES TO THE OTHER PARTY THAT IT HAS
REGISTERED SUCH SECURITIES.
ARTICLE 9. INDEMNIFICATION
9.1
INDEMNIFICATION BY ERCOLE.
ERCOLE WILL INDEMNIFY,
DEFEND AND HOLD AVI AND ITS AGENTS, EMPLOYEES, OFFICERS AND DIRECTORS (THE "AVI
INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND ALL LIABILITY, DAMAGE, LOSS,
COST OR EXPENSE (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING OUT OF THIRD
PARTY CLAIMS OR SUITS RELATED TO (A) ERCOLE'S PERFORMANCE OF ITS OBLIGATIONS
UNDER THIS AGREEMENT; OR (B) BREACH BY ERCOLE OF ITS REPRESENTATIONS AND
WARRANTIES SET FORTH IN ARTICLE 11;
PROVIDED, HOWEVER, THAT ERCOLE'S
OBLIGATIONS PURSUANT TO THIS SECTION 9.1 WILL NOT APPLY TO THE EXTENT SUCH
CLAIMS OR SUITS RESULT FROM (Y) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
ANY OF THE AVI INDEMNITEES OR (Z) A
12
BREACH BY AVI OF ITS REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE 11.
ERCOLE SHALL ALSO INDEMNIFY AGDG TO THE EXTENT REQUIRED BY THE AGDG AGREEMENT.
9.2
INDEMNIFICATION BY AVI.
AVI WILL INDEMNIFY, DEFEND
AND HOLD ERCOLE AND ITS AGENTS, EMPLOYEES, OFFICERS AND DIRECTORS (THE "ERCOLE
INDEMNITEES") HARMLESS FROM AND AGAINST ANY AND