Advanced Medical Optics (EYE)

CONFIDENTIALITY

21.01 General Obligations.

All Confidential Information relating to or obtained from the AMO Entities or IBM shall be held in confidence by the recipient of such Confidential Information (the “Recipient”) to the same extent and in at least the same manner as the Recipient protects its own confidential or proprietary information, for five (5) years from the date of initial disclosure; provided, however, that Confidential Information regarding AMO’s product development in the field of Ophthalmology shall be subject to the terms of this Agreement for ten (10) years from the date of initial disclosure. Neither AMO nor IBM shall disclose, publish, copy, release, transfer or otherwise make available Confidential Information of, or obtained from, the other in any form to, the Party which disclosed such Confidential Information (the “Disclosing Party”) in any form to, or for the use or benefit of, any person or entity without the Disclosing Party’s consent. Each of AMO and IBM shall, however, be permitted to disclose relevant aspects of the other’s Confidential Information to its officers, directors, professional advisors, contractors, subcontractors and employees and to the officers, directors, professional advisors, contractors, subcontractors and employees of its Affiliates to the extent that such disclosure is not restricted under this Agreement, any Consents or any Governmental Approvals and only to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations, or the preservation of its rights, under this Agreement; provided, however, that the Recipient shall take commercially reasonable measures to ensure that Confidential Information of the Disclosing Party is not disclosed or duplicated in contravention of the provisions of this Agreement by such officers, directors, agents, professional advisors, contractors, subcontractors and employees, by, among other things, requiring such officers, directors, agents, professional advisors, subcontractors and employees to enter into confidentiality and nondisclosure agreements that protect the Disclosing Party’s Confidential Information and that contain provisions at least as stringent as those contained in this Article 21; provided, however, that AMO may not disclose IBM Confidential Information to third parties that provide services similar to or in competition with IBM, even in connection with IBM’s performance of the Covered Services The foregoing

 

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is not intended to, and shall in no manner, restrict or be in derogation of any license granted by IBM to AMO pursuant to Section 14.05 of this Agreement, ***. The obligations in this Section shall not restrict any disclosure pursuant to any applicable law or by order of any court or government agency (provided that the Recipient shall give prompt notice to the Disclosing Party of such order in such time as to permit the Disclosing Party to participate in the response to any such order) and shall not apply with respect to information that (1) is independently developed by the Recipient without violating the Disclosing Party’s proprietary rights as shown by the Recipient’s written records, (2) is or becomes publicly known (other than through unauthorized disclosure), (3) is disclosed by the owner of such information to a third party free of any obligation of confidentiality, (4) is already known by the Recipient at the time of disclosure, as shown by the Recipient’s written records, and the Recipient has no obligation of confidentiality other than pursuant to this Agreement or any confidentiality agreements entered into before the Effective Date between AMO and IBM, (5) is rightfully received by a Party free of any obligation of confidentiality, or (6) with respect solely to a particular disclosure, such disclosure is approved in writing by the Disclosing Party. In addition, the Recipient may use in its business activities the ideas, concepts and know-how related to information technology and abstracted from Disclosing Party’s Confidential Information which are retained in the unaided memories of Recipient’s employees who have had access to the Confidential Information under this Agreement. Nothing in this paragraph permits Recipient (a) to disclose the source of information, or any of Discloser’s financial, statistical or personnel data or business plans of the Discloser, or (b) to disclose any of Discloser’s Information outside of the Recipient (or its contractors pursuant to similar confidentiality terms) except such ideas, concepts and know-how which are inherently disclosed by use in Recipient’s products or services. IBM will have the right to compile and use statistical analyses and reports utilizing aggregated data derived from and relating to the AMO Entities’ use of the Covered Services (but excluding the AMO Data), both internal and external to IBM, so long as the information and data contained in such analyses and reports do not in any way identify any AMO Entity or disclose any AMO Data or any Confidential Information of any AMO Entity.

21.02 Attorney-Client Privilege.

IBM recognizes that it may obtain access to documents, data and databases created by and for the AMO Entities and associated communications related thereto (collectively, “Privileged Work Product”) which are confidential attorney work product or subject to the attorney-client privilege and which are clearly marked or identified as such. In addition to the obligations in Sections 21.01 and 21.03, IBM shall not reveal Privileged Work Product to third parties and IBM shall institute commercially reasonable safeguards to prevent the disclosure of Privileged Work Product to third parties. The only Project Staff who may have access to Privileged Work Product shall be those for whom such access is necessary for the purpose of providing services to the AMO Entities as provided in this Agreement. IBM recognizes that some or all of the Privileged Work Product may have been prepared in anticipation of litigation and that IBM is performing the Covered Services in respect of Privileged Work Product as an agent of the AMO Entities, and that all matter related thereto may be protected from disclosure by Rule 26 of the United States Federal Rules of Civil Procedure (or any similar law in other local jurisdictions). Should IBM ever be notified of any judicial or other proceeding seeking to obtain access to Privileged Work Product, IBM shall immediately notify AMO and take such reasonable actions as may be specified by AMO to resist providing such access, and AMO shall

 

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have the right to require IBM to retain mutually accepted counsel to so represent IBM, provided that AMO shall reimburse IBM for reasonable attorneys’ fees and expenses incurred in resisting such access.

21.03 Unauthorized Acts.

Without limiting either Party’s rights in respect of a breach of this Article, each Party shall:

 

(1)

promptly notify the other Party of any unauthorized possession, use or knowledge, or attempt thereof, of the other Party’s Confidential Information by any person or entity that may become known to such Party;

 

(2)

promptly furnish to the other Party full details of the unauthorized possession, use or knowledge, or attempt thereof, and reasonably assist the other Party in investigating or preventing the recurrence of any unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information and, if the unauthorized possession, use or knowledge is by a person or entity other than an employee, director, representative, agent or subcontractor of such Party, at the expense of the other Party;

 

(3)

reasonably cooperate with the other Party in any litigation and investigation against third parties deemed necessary by the other Party to protect its proprietary rights and, if the unauthorized possession, use or knowledge is by a person or entity other than an employee, director, representative, agent or subcontractor of such Party, at the expense of the other Party; and

 

(4)

if the unauthorized possession, use or knowledge is by an employee, director, representative, agent or subcontractor of such Party, promptly use commercially reasonable efforts to (and, generally with respect to all others, use commercially reasonable efforts to) prevent a recurrence of any such unauthorized possession, use or knowledge, or attempt thereof, of Confidential Information.

11.07 Confidentiality.

The Administrative Agent, the L/C Issuer and each of the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, trustees, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent requested by any regulatory authority; (c) to the extent required by applicable Laws or regulations or by any subpoena or similar legal process; (d) to any other party to this Agreement; (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any suit, action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder; (f) subject to provisions substantially the same as those of this Section, to (i) any Eligible Assignee of or Participant in, or any

 

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prospective Eligible Assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section 2.16 or Section 2.17, (ii) any pledgee referred to in Section 11.06(f) or (iii) any direct or indirect contractual counterparty or prospective counterparty (or such contractual counterparty’s or prospective counterparty’s professional advisor) to any credit derivative or treasury services transaction relating to obligations of any of the Loan Parties; (g) with the consent of the Borrower; (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section or (ii) becomes available to the Administrative Agent or any Lender on a nonconfidential basis from a source other than the Borrower or a party that has provided such information in violation of this Section 11.07 (if the Administrative Agent, the L/C Issuer or such Lender, as applicable, knows that such information has been provided in violation of this Section 11.07); (i) to any state, Federal or foreign authority or examiner (including the National Association of Insurance Commissioners or any other similar organization) regulating or purporting to regulate any Lender; or (j) to any rating agency when required by it (it being understood that, prior to any such disclosure, such rating agency shall undertake to preserve the confidentiality of any Information relating to the Loan Parties received by it from such Lender). In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Administrative Agent and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments, and the Credit Extensions. For purposes of this Section, “Information” means all information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or the L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary thereof, provided that, in the case of information received from a Loan Party or any such Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

8.3.         Confidentiality.  Neither this Agreement, nor any of its terms, shall be disclosed to any person or entity without the prior written consent of all Parties, except that this Agreement and its terms may be disclosed (i) to any insurer, reinsurer, attorney or auditor of the Parties after such person or entity is first advised that the disclosure is subject to the confidentiality provisions of this Agreement; (ii) to any of the Parties’ attorneys, accountants or tax preparers after such person is first advised that the disclosure is subject to the confidentiality provisions of this Agreement; and (iii) to any other person or entity if and to the extent required by any law, court order, rule, regulation, or other public disclosure requirement (including exchange requirements or the NASD’s requirements, as applicable), in the opinion of counsel for the disclosing party.  Any party that makes a disclosure of information about this Agreement under subparagraph (iii) above shall take reasonable measures to maintain the confidentiality of such information.  This Agreement and its terms may also be disclosed by either party in any action or proceeding to enforce the terms of this Agreement or in any other legal action or proceeding in which the terms of this Agreement are relevant, provided that a protective order is sought in advance to prevent any further dissemination and disclosure of this Agreement and its terms.  Notwithstanding the above, the Parties shall formulate mutually acceptable press releases regarding their settlement herein, which the Parties shall be entitled to use freely thereafter.