NOTICE AND SHALL
DISCLOSE ONLY SUCH TERMS OF THE MOU OR THE COLLABORATION AND LICENSE AGREEMENT
AS SUCH DISCLOSING PARTY REASONABLY DETERMINES, BASED ON ADVICE FROM ITS
COUNSEL, ARE REQUIRED BY APPLICABLE LAW, REGULATION OR LEGAL PROCESS TO BE
DISCLOSED (WHETHER IN CONNECTION WITH ITS ONGOING DISCLOSURE OBLIGATIONS, IN
CONNECTION WITH A CORPORATE ACTIVITY OR OTHERWISE).
IN THE EVENT THAT EITHER
PARTY DETERMINES THAT IT MUST PUBLICLY FILE THE MOU OR THE COLLABORATION AND
LICENSE AGREEMENT WITH THE SEC SUCH PARTY SHALL (I) INITIALLY FILE A REDACTED
COPY OF THE MOU OR THE COLLABORATION AND LICENSE AGREEMENT, AS APPLICABLE, (II)
REQUEST, AND USE COMMERCIALLY REASONABLE EFFORTS TO OBTAIN, CONFIDENTIAL
TREATMENT OF ALL TERMS REDACTED FROM SUCH REDACTED MOU OR COLLABORATION AND
LICENSE AGREEMENT, PROVIDED THAT THE REDACTION OF SUCH TERMS IS PERMITTED BY THE
APPLICABLE RULES AND REGULATIONS OF THE SEC, (III) PERMIT THE OTHER PARTY TO
REVIEW AND APPROVE SUCH INITIAL REQUEST FOR CONFIDENTIAL TREATMENT AND ANY
SUBSEQUENT CORRESPONDENCE WITH RESPECT THERETO AT LEAST FIVE (5) BUSINESS DAYS
PRIOR TO ITS SUBMISSION TO THE SEC AND (IV) PROMPTLY DELIVER TO THE OTHER PARTY
ANY WRITTEN CORRESPONDENCE RECEIVED BY IT OR ITS REPRESENTATIVES FROM THE SEC
WITH RESPECT TO SUCH CONFIDENTIAL TREATMENT REQUEST AND PROMPTLY ADVISE THE
OTHER PARTY OF ANY OTHER MATERIAL COMMUNICATIONS BETWEEN IT OR ITS
REPRESENTATIVES WITH SEC WITH RESPECT TO SUCH CONFIDENTIAL TREATMENT REQUEST.
9.15
DISCLOSURE SCHEDULE.
THE DISCLOSURE SCHEDULE SHALL BE ARRANGED IN
SUBSECTIONS CORRESPONDING TO THE NUMBERED SUBSECTIONS CONTAINED IN SECTION 3,
AND THE DISCLOSURE IN ANY SUBSECTION OF THE DISCLOSURE SCHEDULE SHALL QUALIFY
THE CORRESPONDING SUBSECTION IN SECTION 3.
THE INCLUSION OF ANY INFORMATION IN
THE DISCLOSURE SCHEDULE SHALL NOT BE DEEMED TO BE AN ADMISSION OR
ACKNOWLEDGMENT, IN AND OF ITSELF, THAT SUCH INFORMATION IS REQUIRED BY THE TERMS
HEREOF TO BE DISCLOSED, IS MATERIAL, HAS RESULTED IN OR WOULD RESULT IN A
MATERIAL ADVERSE EFFECT, OR IS OUTSIDE THE ORDINARY COURSE OF BUSINESS.
9.16
DEFINITIONS.
AS USED IN THIS AGREEMENT, THE FOLLOWING TERMS SHALL
HAVE THE FOLLOWING MEANINGS:
"Agreement" shall have the meaning set forth in the Preamble.
"Aggregate Purchase Price" shall have the meaning set forth in Section 1.
"Amended and Restated Certificate" shall have the meaning set forth in Section
2.2(a).
"Audited Financial Statements" shall have the meaning set forth in Section
3.13(a).
"business day" means any day other than the days on which banks in New York, New
York or Basel, Switzerland are required or authorized to close.
20
"By-laws" shall have the meaning set forth in Section 2.2(a).
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Closing" shall have the meaning set forth in Section 2.1.
"Closing Date" shall have the meaning set forth in Section 2.1.
"Collaboration and License Agreement" shall mean that certain Collaboration and
License Agreement to be entered into between the Company and the Investor
contemplated by the MOU.
"Common Stock" shall have the meaning set forth in Section 1.
"Company" shall have the meaning set forth in the