CONFIDENCE TO ITS ATTORNEYS AND ADVISORS, AND TO POTENTIAL
ACQUIRERS (AND THEIR RESPECTIVE PROFESSIONAL ATTORNEYS AND ADVISORS), IN
CONNECTION WITH A POTENTIAL MERGER, ACQUISITION OR REORGANIZATION AND TO
EXISTING AND POTENTIAL INVESTORS OR LENDERS OF SUCH PARTY, AS A PART OF THEIR
DUE DILIGENCE INVESTIGATIONS, OR TO EXISTING AND POTENTIAL LICENSEES OR
SUBLICENSEES OR TO PERMITTED ASSIGNEES, IN EACH CASE UNDER AN AGREEMENT TO KEEP
THE TERMS OF CONFIDENTIALITY AND NON-USE SUBSTANTIALLY NO LESS RIGOROUS THAN THE
TERMS CONTAINED IN THIS AGREEMENT AND TO USE SUCH INFORMATION SOLELY FOR THE
PURPOSE PERMITTED PURSUANT TO THIS SECTION 11.3(B).
(III)
EITHER PARTY MAY ISSUE A PRESS RELEASE OR MAKE A PUBLIC
DISCLOSURE RELATING TO THIS AGREEMENT OR THE PARTIES' ACTIVITIES UNDER THIS
AGREEMENT TO THE EXTENT THAT SUCH DISCLOSURE DESCRIBES THE COMMENCEMENT AND/OR
"TOP-LINE" RESULTS OF CLINICAL TRIALS OF THE LICENSED PRODUCT, THE ACHIEVEMENT
OF ANY DEVELOPMENT EVENTS WITH RESPECT TO THE LICENSED PRODUCT OR THE FILING FOR
OR RECEIPT OF REGULATORY APPROVAL WITH RESPECT TO THE LICENSED PRODUCT, AMOUNTS
PAID TO INCYTE IN RESPECT OF THE ACHIEVEMENT OF ANY MILESTONE EVENTS, INCYTE'S
EXERCISE OF THE CO-DEVELOPMENT OPTION OR THE TERMINATION OF THIS AGREEMENT;
HOWEVER, THE PARTY RESPONSIBLE FOR PARTICULAR CLINICAL TRIALS WILL COORDINATE
PRESS RELEASE INFORMATION AND DISCLOSURES TO PROTECT RIGHTS TO THE LICENSED
PRODUCT AND COMMUNICATION STRATEGIES RELATING TO THE LICENSED PRODUCT.
PRIOR TO
MAKING ANY SUCH DISCLOSURE, THE PARTY MAKING THE DISCLOSURE SHALL PROVIDE THE
OTHER PARTY WITH A DRAFT OF SUCH PROPOSED DISCLOSURE AT LEAST *** (OR, TO THE
EXTENT TIMELY DISCLOSURE OF A MATERIAL EVENT IS REQUIRED BY LAW OR STOCK
EXCHANGE OR STOCK MARKET RULES, SUCH PERIOD OF TIME SUFFICIENTLY IN ADVANCE OF
THE DISCLOSURE SO THAT THE OTHER PARTY WILL HAVE THE OPPORTUNITY TO COMMENT UPON
THE DISCLOSURE) PRIOR TO MAKING ANY SUCH DISCLOSURE, FOR THE OTHER PARTY'S
REVIEW AND COMMENT.
(C)
FOR PURPOSES OF CLARITY, EITHER PARTY MAY ISSUE A PRESS RELEASE OR
PUBLIC ANNOUNCEMENT OR MAKE SUCH OTHER DISCLOSURE RELATING TO THIS AGREEMENT IF
THE CONTENTS OF SUCH PRESS RELEASE, PUBLIC ANNOUNCEMENT OR DISCLOSURE (I) HAS
PREVIOUSLY BEEN MADE PUBLIC OTHER THAN THROUGH A BREACH OF THIS AGREEMENT BY THE
ISSUING PARTY OR ITS AFFILIATES OR (II) IS CONTAINED IN SUCH PARTY'S FINANCIAL
STATEMENTS PREPARED IN ACCORDANCE WITH ACCOUNTING STANDARDS.
11.4
PUBLICATIONS.
EACH PARTY AND ITS AFFILIATES SHALL HAVE THE RIGHT
TO MAKE DISCLOSURES PERTAINING TO LICENSED COMPOUND OR LICENSED PRODUCT TO THIRD
PARTIES IN PUBLICATIONS IN ACCORDANCE WITH THE FOLLOWING PROCEDURE (PROVIDED
THAT INCYTE SHALL ABIDE BY SUCH
PROCEDURE TO
52
*** Confidential material redacted and filed separately with the Commission.
THE EXTENT POSSIBLE UNDER ANY CLINICAL TRIAL AGREEMENT(S) THAT INCYTE ENTERED
INTO PRIOR TO THE EFFECTIVE DATE):
THE PUBLISHING PARTY SHALL PROVIDE THE
NON-PUBLISHING PARTY WITH AN ADVANCE COPY OF THE PROPOSED PUBLICATION, AND EACH
PARTY SHALL THEN HAVE *** PRIOR TO SUBMISSION FOR ANY PUBLICATION IN WHICH TO
RECOMMEND ANY CHANGES IT REASONABLY BELIEVES ARE NECESSARY TO PRESERVE ANY
PATENT RIGHTS OR KNOW-HOW BELONGING IN WHOLE OR IN PART