RECEIVING
PARTY A WRITTEN DOCUMENT OR DOCUMENTS DESCRIBING OR SUMMARIZING SUCH INFORMATION
AND REFERENCING THE PLACE AND DATE OF SUCH ORAL, VISUAL OR WRITTEN DISCLOSURE
AND THE NAMES OF THE EMPLOYEES OR OFFICERS OF THE RECEIVING PARTY TO WHOM SUCH
DISCLOSURE WAS MADE.
THE TERMS OF THIS AGREEMENT SHALL BE CONSIDERED
CONFIDENTIAL INFORMATION HEREUNDER.
THE RESTRICTIONS ON THE DISCLOSURE AND USE
OF CONFIDENTIAL INFORMATION SET FORTH IN THE FIRST SENTENCE OF THIS
SECTION 9.2.1 SHALL NOT APPLY TO ANY CONFIDENTIAL INFORMATION THAT:
(A)
WAS KNOWN BY THE RECEIVING PARTY PRIOR TO DISCLOSURE BY THE
DISCLOSING PARTY HEREUNDER (AS EVIDENCED BY THE RECEIVING PARTY'S WRITTEN
RECORDS OR OTHER COMPETENT EVIDENCE);
(B)
IS OR BECOMES PART OF THE PUBLIC DOMAIN THROUGH NO FAULT OF THE
RECEIVING PARTY;
(C)
IS DISCLOSED TO THE RECEIVING PARTY BY A THIRD PARTY HAVING A
LEGAL RIGHT TO MAKE SUCH DISCLOSURE WITHOUT VIOLATING ANY CONFIDENTIALITY OR
NON-USE OBLIGATION THAT SUCH THIRD PARTY HAS TO THE DISCLOSING PARTY; OR
(D)
IS INDEPENDENTLY DEVELOPED BY PERSONNEL OF THE RECEIVING PARTY WHO
DID NOT HAVE ACCESS TO THE CONFIDENTIAL INFORMATION (AS EVIDENCED BY THE
RECEIVING PARTY'S WRITTEN RECORDS OR OTHER COMPETENT EVIDENCE).
9.2.2
IN ADDITION, IF EITHER PARTY IS REQUIRED TO DISCLOSE CONFIDENTIAL
INFORMATION OF THE OTHER PARTY BY APPLICABLE LAW, INCLUDING WITHOUT LIMITATION
BY THE RULES OR REGULATIONS OF THE UNITED STATES SECURITIES AND EXCHANGE
COMMISSION OR SIMILAR REGULATORY AGENCY IN A COUNTRY OTHER THAN THE UNITED
STATES OR OF ANY STOCK EXCHANGE OR NASDAQ, SUCH PARTY SHALL PROVIDE PRIOR NOTICE
OF SUCH INTENDED DISCLOSURE TO SUCH OTHER PARTY IF POSSIBLE UNDER THE
CIRCUMSTANCES AND SHALL DISCLOSE ONLY SUCH CONFIDENTIAL INFORMATION OF SUCH
OTHER PARTY AS IS REQUIRED TO BE DISCLOSED.
IN ADDITION, EITHER PARTY MAY
DISCLOSE TO BONA FIDE POTENTIAL INVESTORS, LENDERS AND ACQUIRORS/ACQUIREES, AND
TO SUCH PARTY'S CONSULTANTS AND ADVISORS, THE EXISTENCE AND TERMS OF THIS
AGREEMENT TO THE EXTENT NECESSARY IN CONNECTION WITH A PROPOSED EQUITY OR DEBT
FINANCING OF
28
SUCH PARTY, OR A PROPOSED ACQUISITION OR BUSINESS COMBINATION, SO LONG AS SUCH
RECIPIENTS ARE BOUND IN WRITING TO MAINTAIN THE CONFIDENTIALITY OF SUCH
INFORMATION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.
9.2.3
EACH PARTY AGREES THAT IT SHALL PROVIDE OR PERMIT ACCESS TO
CONFIDENTIAL INFORMATION RECEIVED FROM THE OTHER PARTY AND SUCH PARTY'S
AFFILIATES AND REPRESENTATIVES ONLY TO THE RECEIVING PARTY'S AND THE RECEIVING
PARTY'S AFFILIATES' EMPLOYEES, CONSULTANTS, ADVISORS, SUBLICENSEES AND
SUB-DISTRIBUTORS WHO IN SUCH PARTY'S REASONABLE JUDGMENT HAVE A NEED TO KNOW
SUCH CONFIDENTIAL INFORMATION TO ASSIST THE RECEIVING PARTY WITH THE ACTIVITIES
CONTEMPLATED BY THIS AGREEMENT AND WHO ARE SUBJECT TO OBLIGATIONS OF
CONFIDENTIALITY AND NON-USE WITH RESPECT TO SUCH CONFIDENTIAL INFORMATION
SIMILAR TO THE OBLIGATIONS OF CONFIDENTIALITY AND NON-USE OF THE RECEIVING PARTY
PURSUANT TO SECTION 9.2.1; PROVIDED THAT MLNM AND OBI SHALL EACH REMAIN
RESPONSIBLE FOR ANY FAILURE BY ITS AND ITS AFFILIATES' RESPECTIVE EMPLOYEES,
CONSULTANTS, ADVISORS AND SUBLICENSEES AND SUB-DISTRIBUTORS, TO TREAT SUCH
CONFIDENTIAL INFORMATION AS REQUIRED UNDER SECTION 9.2.1 (AS IF SUCH EMPLOYEES,
CONSULTANTS, ADVISORS AND