NECESSARY AND PERMITTED IN THE
EXERCISE OF THE RIGHTS GRANTED HEREUNDER IN FILING OR PROSECUTING PATENT
APPLICATIONS, PROSECUTING OR DEFENDING LITIGATION, (II) SUCH DISCLOSURE IS
REASONABLY REQUIRED TO BE MADE TO ANY INSTITUTIONAL REVIEW BOARD OF ANY ENTITY
CONDUCTING CLINICAL TRIALS WITH AGREEMENT COMPOUND(S) AND/OR AGREEMENT
PRODUCT(S), OR TO ANY GOVERNMENTAL OR OTHER REGULATORY AGENCY, IN ORDER TO GAIN
APPROVAL TO CONDUCT CLINICAL TRIALS OR TO MARKET AGREEMENT COMPOUND(S) AND/OR
AGREEMENT PRODUCTS, (III) SUCH DISCLOSURE IS REQUIRED BY LAW, REGULATION, RULE,
ACT OR ORDER OF ANY GOVERNMENTAL AUTHORITY, COURT, OR AGENCY, OR IS MADE IN
CONNECTION WITH SUBMITTING REQUIRED INFORMATION TO TAX OR OTHER GOVERNMENTAL
AUTHORITIES, OR (IV) SUCH DISCLOSURE OR USE IS REASONABLY REQUIRED IN CONDUCTING
CLINICAL TRIALS, OR MAKING A PERMITTED SUBLICENSE OR OTHERWISE EXERCISING
LICENSE RIGHTS EXPRESSLY GRANTED TO IT BY THE OTHER PARTY PURSUANT TO THE TERMS
25
OF THIS AGREEMENT; IN EACH CASE, PROVIDED THAT IF A PARTY IS REQUIRED TO MAKE
ANY SUCH DISCLOSURE OF ANOTHER PARTY'S CONFIDENTIAL INFORMATION, OTHER THAN
PURSUANT TO A CONFIDENTIALITY AGREEMENT, IT WILL GIVE REASONABLE ADVANCE NOTICE
TO THE OTHER PARTY OF SUCH DISCLOSURE AND, SAVE TO THE EXTENT INAPPROPRIATE IN
THE CASE OF PATENT APPLICATIONS, WILL USE ITS REASONABLE DILIGENT EFFORTS TO
SECURE CONFIDENTIAL TREATMENT OF SUCH CONFIDENTIAL INFORMATION IN CONSULTATION
WITH THE OTHER PARTY PRIOR TO ITS DISCLOSURE (WHETHER THROUGH PROTECTIVE ORDERS
OR OTHERWISE) AND DISCLOSE ONLY THE MINIMUM NECESSARY TO COMPLY WITH SUCH
REQUIREMENTS.
7.3
RETURN OF CONFIDENTIAL INFORMATION.
FOLLOWING TERMINATION OF THIS AGREEMENT, AT ANY TIME UPON REQUEST OF THE
DISCLOSING PARTY, THE RECEIVING PARTY WILL RETURN ALL DOCUMENTS, AND COPIES
THEREOF, CONTAINING THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION THAT ARE
STILL IN THE RECEIVING PARTY'S POSSESSION OR CONTROL; HOWEVER, THE RECEIVING
PARTY MAY RETAIN ONE COPY OF SUCH DOCUMENTS IN A SECURE LOCATION SOLELY FOR THE
PURPOSE OF DETERMINING ITS OBLIGATIONS HEREUNDER, TO COMPLY WITH ANY APPLICABLE
REGULATORY REQUIREMENTS, OR TO DEFEND AGAINST ANY PRODUCT LIABILITY CLAIMS.
7.4
NONDISCLOSURE OF TERMS.
EACH OF THE PARTIES
HERETO AGREES NOT TO DISCLOSE TO ANY THIRD PARTY THE EXISTENCE OR THE TERMS OF
THIS AGREEMENT WITHOUT THE PRIOR WRITTEN CONSENT OF EACH OTHER PARTY HERETO,
EXCEPT TO SUCH PARTY'S ATTORNEYS, ADVISORS, INVESTORS AND OTHERS ON A NEED TO
KNOW BASIS UNDER CIRCUMSTANCES THAT REASONABLY ENSURE THE CONFIDENTIALITY
THEREOF, OR TO THE EXTENT REQUIRED BY LAW.
NOTWITHSTANDING THE FOREGOING, THE
PARTIES WILL AGREE UPON A PRESS RELEASE TO ANNOUNCE THE EFFECTIVENESS OF THIS
AGREEMENT, TOGETHER WITH A CORRESPONDING Q&A OUTLINE FOR USE IN RESPONDING TO
INQUIRIES ABOUT THE AGREEMENT; AND IN SUCH EVENT, PHARMACOPEIA AND SCHERING MAY
EACH DISCLOSE TO THIRD PARTIES THE INFORMATION CONTAINED IN SUCH PRESS RELEASE
AND Q&A WITHOUT THE NEED FOR FURTHER APPROVAL BY THE OTHER.
IN ADDITION,
PHARMACOPEIA MAY MAKE PUBLIC STATEMENTS REGARDING PROGRESS WITH RESPECT TO THE
DEVELOPMENT AND COMMERCIALIZATION OF AGREEMENT COMPOUNDS AND/OR AGREEMENT
PRODUCTS, INCLUDING ANNOUNCEMENT OF THE ACHIEVEMENT OF MILESTONES, FOLLOWING
CONSULTATION WITH SCHERING AND WITH THE WRITTEN CONSENT OF SCHERING.
NOTHING IN
THIS SECTION 7.4 SHALL PROHIBIT A