TO EMPLOYEES OR INDEPENDENT
CONTRACTORS (INCLUDING WITHOUT LIMITATION CONSULTANTS AND CLINICAL
INVESTIGATORS), EACH OF WHOM PRIOR TO DISCLOSURE MUST BE BOUND BY WRITTEN
OBLIGATIONS OF CONFIDENTIALITY AND NON-USE NO LESS RESTRICTIVE THAN THE
OBLIGATIONS SET FORTH IN THIS SECTION 8.8; PROVIDED, THAT THE RECEIVING PARTY
WILL REMAIN RESPONSIBLE FOR ANY FAILURE BY ANY PERSON WHO RECEIVES CONFIDENTIAL
INFORMATION PURSUANT TO THIS SECTION 8.8 TO TREAT SUCH CONFIDENTIAL INFORMATION
AS REQUIRED UNDER THIS SECTION 8.8.
(C)
IF AND WHENEVER ANY CONFIDENTIAL INFORMATION IS DISCLOSED IN ACCORDANCE
WITH THIS SECTION 8.8, SUCH DISCLOSURE WILL NOT CAUSE ANY SUCH INFORMATION TO
CEASE TO BE CONFIDENTIAL INFORMATION EXCEPT TO THE EXTENT THAT SUCH PERMITTED
DISCLOSURE RESULTS IN A PUBLIC DISCLOSURE OF SUCH INFORMATION (OTHER THAN BY
BREACH OF THIS AGREEMENT).
EXCEPT AS PROHIBITED BY
50
LAW, THE RECEIVING PARTY WILL NOTIFY THE DISCLOSING PARTY OF THE RECEIVING
PARTY'S INTENT TO MAKE SUCH DISCLOSURE PURSUANT TO CLAUSES (I) OR (II) OF
SECTION 8.8(B) SUFFICIENTLY PRIOR TO MAKING SUCH DISCLOSURE SO AS TO ALLOW THE
DISCLOSING PARTY ADEQUATE TIME TO TAKE WHATEVER ACTION THE DISCLOSING PARTY MAY
DEEM APPROPRIATE TO PROTECT THE CONFIDENTIALITY OF THE INFORMATION.
IN
ADDITION, IN THE EVENT ANY PARTY PROPOSES TO FILE WITH ANY GOVERNMENTAL
AUTHORITY A TRANSACTION DOCUMENT, INCLUDING, WITHOUT LIMITATION, AS AN EXHIBIT
TO A REGISTRATION STATEMENT, PERIODIC REPORT, OR CURRENT REPORT, THE PARTY
PROPOSING TO MAKE SUCH FILING WILL NOTIFY THE OTHER PARTIES OF SUCH INTENTION
AND WILL WORK IN GOOD FAITH WITH THE OTHER PARTIES TO OBTAIN CONFIDENTIAL
TREATMENT OF ANY MATERIAL TERMS OF THE TRANSACTION DOCUMENTS THAT SUCH OTHER
PARTIES REQUEST BE KEPT CONFIDENTIAL (EXCEPT TO THE EXTENT ADVISED BY COUNSEL OR
SUCH GOVERNMENTAL AUTHORITY THAT CONFIDENTIAL TREATMENT IS NOT AVAILABLE FOR
SUCH INFORMATION).
(D)
AT THE CLOSING, ISIS SHALL DELIVER TO AMI ALL CONFIDENTIAL INFORMATION OF
THE BUSINESS IN ISIS' OR ITS AFFILIATES' POSSESSION AND CONTROL AND ALL COPIES
THEREOF, IN WHATEVER FORM OR MEDIUM, INCLUDING, WITHOUT LIMITATION, WRITTEN
RECORDS, OPTICAL AND MAGNETIC MEDIA, AND ALL OTHER MATERIALS CONTAINING ANY SUCH
CONFIDENTIAL INFORMATION.
IF AMI REQUESTS, ISIS SHALL PROMPTLY PROVIDE WRITTEN
CONFIRMATION THAT ALL SUCH MATERIALS HAVE BEEN DELIVERED TO AMI.
(E)
THE EXISTENCE AND THE TERMS AND CONDITIONS OF THE TRANSACTION DOCUMENTS
THAT THE PARTIES HAVE NOT SPECIFICALLY AGREED TO DISCLOSE PURSUANT TO
SECTION 8.8(B) OR SECTION 8.3 WILL BE CONSIDERED CONFIDENTIAL INFORMATION OF
BOTH PARTIES.
AMI AND, SUBJECT TO THE TERMS OF SECTION 7.8, ISIS MAY DISCLOSE
SUCH TERMS TO A BONA FIDE POTENTIAL INVESTOR, INVESTMENT BANKER, ACQUIRER,
MERGER PARTNER OR OTHER POTENTIAL BUSINESS PARTNER OF AMI OR ISIS, RESPECTIVELY,
AND THEIR ATTORNEYS AND AGENTS, PROVIDED THAT EACH SUCH PERSON TO WHOM SUCH
INFORMATION IS TO BE DISCLOSED IS INFORMED OF THE CONFIDENTIAL NATURE OF SUCH
INFORMATION AND HAS ENTERED INTO A WRITTEN AGREEMENT WITH THE PARTY REQUIRING
SUCH PERSON TO KEEP SUCH INFORMATION CONFIDENTIAL.
8.9
Noncompetition and Nonsolicitation.
The Parties hereby agree as
follows:
(A)
NONCOMPETITION.
DURING THE PERIOD FROM THE DATE HEREOF TO AND INCLUDING
THE [***] ANNIVERSARY OF THE CLOSING