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`EXHIBIT D
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`REDACTED
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`

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`EXECUTION VERSION
`
`Supplementary Patent License Agreement
`
`between
`
`Saint Regis Mohawk Tribe
`
`and
`
`Allergnn, Inc.
`
`Dated as of September 8, 2017
`
`CONFIDENTIAL
`
`AGN_RES1 158899
`
`Ac 3:: WW”
`
`

`

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`SCHEDULES
`
`Schedule 114(3) Licensed Patents
`
`CONFIDENTIAL
`
`AGN_RES1 158900
`
`

`

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`SUPPLEMENTARY PATENT LICENSE AGREEMENT
`
`This Supplementary Patent License Agreement (this “Agreement”) is made and
`entered into as of September 8, 2017 (the “Effective Date”) by and between the Saint Regis
`Mohawk Tribe, a federally recognized sovereign Native American tribe (“Licensor”), and
`Allergan, Inc., a corporation organized under the laws of the State of Delaware, having a business
`address at Morris Corporate Center [[1, 400 lnterpace Parkway, Parsippany, New Jersey 07054
`(“Allergen"). Licensor and Allergan are sometimes referred to herein individually as a “Party”
`and collectively as the “Parties.”
`
`RECITALS
`
`WHEREAS, Licensor is the sole and exclusive owner of, and has the right to
`license to Allergan, the Licensed Patents (as defined herein); and
`
`WHEREAS, Licensor wishes to grant to Allergen, and Allergan wishes to take, a
`license under the Licensed Patents to develop, commercialize and otherwise exploit products.
`
`NOW, THEREFORE, in consideration of the premises and the mutual promises
`and conditions set forth herein, and other good and valuable consideration,
`the receipt and
`sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, do
`hereby agree as follows:
`
`ARTICLE 1
`DEFINITIONS
`
`Unless otherwise specifically provided herein, the following terms shall have the
`following meanings:
`
`“Action" means any action, suit, arbitration, legal process, investigation, claim,
`1.1
`proceeding (including enforcement proceeding), demand or other similar dispute or dispute
`resolution method (whether federal, state, local or tribal).
`
`1.2
`
`“Administrative Proceeding” has the meaning set forth in Section 4.1.1.
`
`”Affiliate" means, with respect to a Person, any Person that, directly or indirectly,
`1.3
`through one or more intermediaries, controls, is controlled by or is under common control with
`such first Person but only for so long as such Person controls, is controlled by or is under common
`control with such first Person. For purposes of this definition, “control" and, with correlative
`meanings, the terms “controlled by” and “under common control with" means: (a) the possession,
`directly or indirectly, of the power to direct the management or policies of a business entity,
`whether through the ownership of voting securities, by contract relating to voting rights or
`corporate governance, or otherwise; or (b) the ownership, directly or indirectly, of more than 50%
`ofthe voting securities or other ownership interest ofa business entity (or, with respect to a limited
`partnership or other similar entity, its general partner or controlling entity). For clarity, each
`Component of Licensor shall be deemed an Affiliate of Licensor under this Agreement.
`
`1.4
`
`i
`
`vAgreement”hasthemeaningset forthinthepreamblehereto. W(Y
`a}; 6
`i/g/fil
`,a/
`
`’
`
`/1’
`
`M
`
`CONFIDENTIAL
`
`AGN_RES1 158901
`
`

`

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`1.5
`
`1.6
`
`“Allergan” has the meaning set forth in the preamble hereto.
`
`“Allergan lndemnitees" has the meaning set forth in Section 7.1.2.
`
`“Applicable Law" means applicable intemational, foreign, federal, state and local
`1.7
`laws, rules, and regulations, including any rules, regulations, guidelines, or other requirements of
`any Governmental Entity that may be in effect from time to time. For clarity, with respect to all
`representations, warranties, covenants and other obligations of Licensor hereunder and any rights,
`remedies or privileges of Allergan hereunder, the term “Applicable Law" shall include all tribal
`laws, rules, and regulations.
`
`“Business Day" means a day other than a Saturday, Sunday, or a day on which
`1.8
`banking institutions in New York, New York are permitted or required to be closed.
`
`“Component of Licensor" means any company, corporation, enterprise, authority,
`1.9
`division, subdivision, branch or other agency, instrumentality or other government component of
`Licensor.
`
`1.10
`
`“Confidential Information" has the meaning set forth in Section 5. l.
`
`1.11
`
`“Contested Proceeding” has the meaning set forth in Section 4.2.5.
`
`1.12
`
`“Dispute" has the meaning set forth in Section 9.8.
`
`1.13
`
`“Dispute Resolution Parties” has the meaning set forth in Section 9.8.
`
`1.14
`
`“Effective Date" has the meaning set forth in the preamble.
`
`“Exploit” means to make, have made, use, offer to sell, sell import or otherwise
`1.15
`exploit. The term “Exploitation" has a corresponding meaning.
`
`1.16
`
`“Force Majeure Event“ has the meaning set forth in Section 9.1 .
`
`“Governmental Entity" means any applicable supra-national, federal, national,
`1.17
`regional, state, provincial, or local regulatory agencies, authorities, instrumentalities, departments,
`bureaus, commissions, councils, courts, or other government entities. For clarity, with respect to
`all representations, warranties, covenants and other obligations of Licensor hereunder and any
`rights, remedies or privileges of Allergan hereunder, the term Govemmental Entity shall include
`any tribal regulatory agencies, authorities, instrumentalities, departments, bureaus, commissions,
`councils, courts, or other government entities and entities exercising executive,
`legislative,
`judicial, taxing, regulatory or administrative powers or functions of or pertaining to a government.
`
`1.18
`
`“Grantees" has the meaning set forth in Section 9.9. 1(a).
`
`“Hatch-Waxman Act" means the US. “Drug Price Competition and Patent Term
`1.19
`Restoration Act" of 1984, as set forth at 21 U.S.C. §355 et seq.
`
`1.20
`
`“Indemnified Party" has the meaning set forth in Section 7.2.l.
`
`CONFIDENTIAL
`
`AGN_RES1 158902
`
`

`

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`“Indemnifying Party” means the Party fiorn which indemnification is sought
`1.21
`pursuant to Section 7.1.
`
`1.22
`
`“Infringement" has the meaning set forth in Section 4.2.1.
`
`1.23
`
`“Infrlngement Action" has the meaning set forth in Section 4.2.2.
`
`“Licensed Patents" means (a) the United States Patents listed on Schedule 1.2401);
`1.24
`(b) all United States patent applications that claim priority to any United States Patents listed on
`Schedule l.24(a),
`including divisionals, continuations, continuations-in-part, provisionals,
`converted pmvisionals, and continued prosecution applications; (c) any and all United States
`patents that have issued or in the future issue from the foregoing patent applications described in
`clause (b), including utility models, petty patents, innovation patents and design patents and
`certificates of invention; and (d) any and all extensions or restorations by existing or future
`extension or restoration mechanisms,
`including revalidations, reissues, re-examinations and
`extensions of the foregoing patents or patent applications ((b) and (c)).
`
`1.25
`
`“Licenser” has the meaning set forth in the preamble hereto.
`
`1.26
`
`“Licensor Indemnitees” has the meaning set forth in Section 7.l.l.
`
`lien,
`“Lien" means any mortgage, deed of trust, hypothecation, assignment,
`1.27
`pledge, charge, deposit arrangement, security interest or other security arrangement, claim of
`ownership or other right, contractual restriction, easement, right-of-way, option, conditional sale
`or other title retention agreement or encumbrance, preference, priority, or preferential arrangement
`of any kind or nature whatsoever, including whether statutory, a product of agreement, or by
`operation of law or otherwise.
`
`1.28
`
`“Losses" has the meaning set forth in Section 7.1.1.
`
`1.29
`
`“Party" and “Parties" each has the meaning set forth in the preamble hereto.
`
`“Patents” means: (a) all national, regional and international patents and patent
`1.30
`applications, including provisional patent applications; (b) all patent applications that claim
`priority to any patent or patent applications in clause (at), including divisionals, continuations,
`continuations—in-part,
`provisionals,
`converted
`provisionals,
`and
`continued
`prosecution
`applications; (c) any and all patents that have issued or in the future issue from the foregoing patent
`applications ((a) and (b)), including utility models, petty patents, innovation patents and design
`patents and certificates of invention; and (d) any and all extensions or restorations by existing or
`future extension or restoration mechanisms, including revalidations, reissues, re-examinations and
`extensions (including any supplementary protection certificates and the like) of the foregoing
`patents or patent applications ((a), (b), and (c)).
`
`“Person" means an individual, sole proprietorship, partnership, limited partnership,
`1.31
`limited liability partnership, corporation, limited liability company, business trust, joint stock
`company, trust, unincorporated association, joint venture or other similar entity or organization,
`including a Governmental Entity.
`
`3
`
`64'9”?“
`£22;
`
`7 SW
`/
`
`CONFIDENTIAL
`
`AGN_RES1 158903
`
`

`

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`1.32
`
`“Protected Assets” has the meaning set forth in Section 9.9.1.
`
`1.33
`
`“Term” has the meaning set forth in Section 8.1.
`
`I
`
`1.34
`Affiliates.
`
`“Third Party” means any Pemn other than Licensor, Allergan and their respective
`
`1.35
`
`“Third Party Claims” has the meaning set forth in Section 7.1.1.
`
`the Patent Assignment
`”Transaction Documents" means this Agreement,
`1.36
`Agreement between the Licensor and Allergan dated as of the Effective Date, the Patent License
`Agreement between the Licensor and Allergan dated as ofthe Efi‘ective Date (the “Patent License
`Agreement”) and each other agreement, document or instrument executed in connection herewith
`or related to the Transactions.
`
`“Transactions" means, collectively, the grant ofrights and other matters described
`1.37
`in this Agreement and each other transaction described in the Transaction Documents.
`
`“Tribal Party” means the Licensor or any Component of Licensor, and “Tribal
`1.38
`Parties” means Licensor and all Components of Licensor, collectively.
`
`“United States” or “as." means the United States of America and its territories
`1.39
`and possessions (including the District of Columbia and Puerto Rico).
`
`ARTICLE 2
`GRANT OF RIGHTS
`
`Grants to Allergan. Subject to the terms and conditions of this Agreement,
`2.1
`Licensor hereby grants to Allergan an irrevocable, perpetual, transferable, royalty-free, fully paid
`up and exclusive (including with regard to Licensor) global license, with the right to grant
`sublicenses through multiple tiers of sublicensees in accordance with Section 2.3, under the
`Licensed Patents for Exploitation and any and all other purposes.
`
`Confirmatory Patent License. Licensor shall, if requested to do so by Allergan,
`2.2
`promptly enter into confirmatory license agreements in the form reasonably requested by Allergan
`for purposes ofrecording the licenses granted under this Agreement with the United States Patent
`and Trademark Office as Allergan considers appropriate; provided that Allergen shall reimburse
`the reasonable out-of-pocket costs incurred by Licensor performing activities under this Section
`2.2. Until the execution of any such confirmatory licenses, so far as may be legally possible and
`consistent with the terms of this Agreement, including the scope of license grants in Section 2.1,
`Licensor and Allergan shall have the same rights in respect of the Licensed Patents and be under
`the same obligations to each other in all respects as if the said confirmatory licenses had been
`executed.
`
`to grant
`Permitted Sublicenslng. Allergan shall have the exclusive right
`2.3
`sublicenses, through multiple tiers of sublicensees, under the license granted in Section 2.1, to its
`Affiliates and other Persons, including sublicenses for the purpose ofsettling any Action pertaining
`to the Licensed Patents.
`
`.
`
`WW
`
`W .
`7”
`
`CONFIDENTIAL
`
`AGN_RES1 158904
`
`

`

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`Assignment of Licensed Patents. At Licensee’s request, Licensor shall assign one
`2.4
`or more of the Licensed Patents to Licensee or any of its Affiliates. Licensee shall reimburse
`Licensor for all reasonable fees and costs associated with such assignment(s).
`
`ARTICLE 3
`DEVELOPMENT, COMMERCIALIZATION AND REGULATORY ACTIVITIES
`
`In General. During the Term, Allergan (by itselfor through its Affiliates or its or
`3.1
`their sublicensees) shall have the sole and exclusive right in the United States, at its sole cost and
`expense, to Exploit products under the Licensed Patents, including to: (a) develop (or have
`developed); (b) manufacture (or have manufactured); (c) commercialize (or have commercialized);
`and (d) prepare, submit, obtain, and maintain approvals (including the setting of the overall
`regulatory strategy therefor), and conduct communications with the Governmental Entities with
`respect to, products under the Licensed Patents.
`
`ARTICLE 4
`INTELLECTUAL PROPERTY
`
`4.1 Maintenance and Prosecution of Patents.
`
`4.1.1 Patent Prosecution and Maintenance of Licensed Patents. As between
`the Parties, Allergan shall have the sole right, but not the obligation, using counsel of its own
`choice and at its own expense, to prepare, file, prosecute and maintain the Licensed Patents in the
`United States and to direct and control the prosecution strategy with respect to the Licensed Patents
`and to be responsible for (including the defense of) any related interference, re-issuance, re-
`examination,
`supplemental examination or other administrative proceedings
`(each,
`an
`“Administrative Proceeding”) using counsel of its own choice.
`
`4.1.2 Cooperation. Licensor shall, and shall cause its Affiliates to, assist and
`cooperate with Allergan, as Allergen may reasonably request from time to time,
`in: (a) the
`preparation, filing, prosecution and maintenance of the Licensed Patents and the conduct of any
`Administrative Proceeding under this Agreement; (b) the preparation, filing, prosecution and
`maintenance of Patents outside the United States that claim priority to or subject matter disclosed
`in or that are otherwise related to the Licensed Patents and the conduct of any Administrative
`Proceedings with respect thereto; and (c) joining or otherwise appearing in any Administrative
`Proceeding or other Action as a necessary or indispensable party or in which Licensor's
`participation is necessary to assert defenses, claims, matters in avoidance or objections only
`assertable by Licensor and such assertions are to preserve the value of the Licensed Patents and
`fulfill the purposes ofthis Agreement; provided that Allergen shall retain control ofthe prosecution
`of any such Administrative Proceeding or other Action. Licensor shall execute documents as
`necessary or reasonable in support of such patent prosecution, Administrative Proceeding or other
`Action, including powers of attorney. Allergen shall reimburse Licensor for its reasonable and
`verifiable out-of-pocket costs and expenses (excluding, in the case of (a) and (b) above, counsel
`fees) incurred in connection therewith.
`
`4.1.3 Patent Term Extension. As between the Parties, Allergan shall have the
`sole right to make decisions regarding, and to apply for, patent term extensions pursuant to 35
`
`CONFIDENTIAL
`
`AGN_RES1 158905
`
`5
`
`qfi/flfi
`a,
`
`7/Qjfil
`
`

`

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`
`U.S.C. §156 et. seq. or any other extensions that are now or become available in the future,
`wherever applicable, for the Licensed Patents, in each case including whether or not to do so.
`Licensor shall provide prompt and reasonable assistance, as requested by Allergan, including by
`taking such action as patent holder as is required under any Applicable Law to obtain such
`extension; provided. that Allergan shall reimburse the Licensor for its reasonable and verifiable
`out-of-pocket costs and expenses incurred in connection therewith.
`
`4.1.4 Patent Listings. As between the Parties, Allergan shall have the sole right
`to make all filings with Governmental Entities with respect to the Licensed Patents, including in
`the US. Food and Drug Administration’s Orange Book.
`
`4.2
`
`Enforcement of Patents.
`
`4.2.1 Notice. Each Party shall promptly notify the other Party in writing of (a)
`any actual, potential, alleged or threatened infringement of the Licensed Patents in the United
`States or (b) any certification filed under the Hatch-Waxman Act claiming that any Licensed
`Patents are invalid or unenforceable or claiming that any Licensed Patents would not be infringed
`by the making, use, offer for sale, sale or import of a product for which an application under the
`Hatch-Waxman Act is filed, in each case ((a) and (b)) of which such Party becomes aware (an
`“Infringement").
`
`4.2.2 Enforcement of Licensed Patents. With regard to any infringement, as
`between the Parties, Allergan shall have the sole right, but not the obligation, to control and
`prosecute or continue to prosecute any past, present or future infringement with respect to the
`Licensed Patents in any Action or Actions (“Infringement Action"), including as a defense or
`counterclaim in connection with any third party infringement claim, at Allergan’s sole cost and
`expense, using counsel of its own choice.
`
`Licensor shall cooperate fully with Allergan in any
`4.2.3 Cooperation.
`Infringement action pursuant to this Section 4.2. Licensor shall, and shall cause its Affiliates to,
`assist and cooperate with Allergan, as Allergan may reasonably request from time to time, in
`connection with its activities set forth in this Section 4.2, including where necessary, fumishing a
`power of attorney solely for such purpose or joining in, or being named as a necessary or substitute
`party to, such action, providing access to relevant documents and other evidence and making its
`employees available at reasonable business hours; provided that Allergan shall continue to control
`such Infringement Action, including the response to any defense or defense of any counterclaim
`raised in connection therewith and settlement activities as set forth in this Section 4.2.3. Allergan
`shall reimburse Licensor for its reasonable and verifiable out-of-pocket costs and expenses
`incurred in connection therewith. For clarity, Allergan shall have the sole right to settle any Action
`with respect to the Licensed Patents on such terms as it determines in its sole discretion.
`
`4.2.4 Recovery. Except as otherwise agreed by the Parties in connection with a
`cost sharing arrangement, any recovery realized as a result of such Actions described above in this
`Section 4.2 (whether by way of settlement or otherwise) shall be retained by Allergan.
`
`4.2.5 Contested Proceedings. Each Party shall promptly notify the other Party
`in writing of any actual, potential, alleged or threatened assertion of invalidity, unenforceability or
`
`CONFIDENTIAL
`
`° w W’
`&A6N_RES1158906
`
`

`

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`
`unpatentability including any inter partes review, post-grant review or derivation proceeding
`(each, a “Contested Proceeding”) of any of the Licensed Patents by a Third Party of which such
`Party becomes aware. As between the Parties, Allergan shall have the sole right, but not the
`obligation, to defend and control the defense of the validity, enforceability and patentability of the
`Licensed Patents in such Contested Proceeding, at its sole cost and expense and using counsel of
`its own choice. Licensor shall, and shall cause its Affiliates to, assist and cooperate with Allergan,
`as Allergan may reasonably request from time to time, in connection with its activities set forth in
`this Section 4.2.5, including where necessary, fumishing a power of attorney solely for such
`purpose or joining in, or being named as a necessary party to, such action, providing access to
`relevant documents and other evidence and making its employees available at reasonable business
`hours; provided that Allergan shall retain control of the defense in such Contested Proceeding.
`Allergan shall reimburse Licensor for its reasonable and verifiable out-of-pocket costs and
`expenses incurred in connection therewith. For clarity, Allergan shall have the sole right to settle
`any Contested Proceeding with respect to the Licensed Patents on such terms as it determines in
`its sole discretion.
`
`ARTICLE 5
`CONFIDENTIALITY AND NON-DISCLOSURE
`
`Confidentiality Obligations. Unless otherwise provided for in this Agreement, at
`5.]
`all times during the Term and for a period of fifteen (15) years thereafter, each Party shall, and
`shall cause its officers, directors, employees and agents (including outside counsel and consultants)
`to, keep confidential and not publish or otherwise disclose to a Third Party and not use, directly or
`indirectly, for any purpose, any Confidential lnfonnation fumished or othewvise made known to
`it, directly or indirectly, by the other Party, except to the extent such disclosure or use is expressly
`permitted by the terms of this, Agreement or is necessary or reasonably useful for the performance
`of, or the exercise of such Party’s rights under, this Agreement. “Confidential Information"
`means any technical, business, or other information provided by or on behalf of one Party to the
`other Party in connection with this Agreement, whether prior to, on, or after the Effective Date,
`including any information relating to the terms of this Agreement, any information exchanged
`between the Parties regarding the preparation, prosecution, or maintenance of the Licensed Patents
`or any Administrative Proceeding, Infringement action, Third Party Infringement Claim, or any
`other proceeding or claim pertaining to the Licensed Patents, any development or
`commercialization of any product under the Licensed Patents, any know-how with respect thereto
`developed by or on behalf of the disclosing Party or its Affiliates, or the scientific, regulatory or
`business affairs or other activities of either Party. Notwithstanding the foregoing, the terms of this
`Agreement shall be deemed to be the Confidential Information of both Parties and both Parties
`shall be deemed to be the receiving Party and the disclosing Party with respect thereto.
`
`the confidentiality and non-use
`Exceptions. Notwithstanding Section 5.1,
`5.2
`obligations under Section 5.] with respect to any Confidential Information shall not include any
`information that:
`
`is or hereafier becomes part ofthe public domain by public use, publication,
`5.2.1
`general knowledge or the like through no fault of the receiving Party in breach of this Agreement;
`
`7
`
`(”Mtg Dug/H
`£23
`
`CONFIDENTIAL
`
`AGN_RES1 158907
`
`

`

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`can be demonstrated by documentation or other competent proof to have
`5.2.2
`been in the receiving Party’s (or its Affiliates') possession prior to disclosure by the disclosing
`Party without any obligation of confidentiality with respect to such information;
`
`is subsequently received by the receiving Party on a non-confidential basis
`5.2.3 _
`from a Third Party who is not bound by any obligation of confidentiality with respect to such
`information;
`
`has been published by a Third Party or otherwise enters the public domain
`5.2.4
`through no fault of the receiving Party in breach of this Agreement; or
`
`can be demonstrated by documentation or other competent evidence to have
`5.2.5
`been independently deveIOped by or for the receiving Party without reference to the disclosing
`Party’s Confidential Information.
`
`Specific aspects or details of Confidential Information shall not be deemed to be within the public
`domain or in the possession of the receiving Party merely because the Confidential Information is
`embraced by more general information in the public domain or in the possession of the receiving
`Party. Further, any combination of Confidential Information shall not be considered in the public
`domain or in the possession of the receiving Party merely because individual elements of such
`Confidential Information are in the public domain or in the possession ofthe receiving Party unless
`the combination and its principles are in the public domain or in the possession of the receiving
`Party.
`
`5.3 Mutual Permitted Disclosures.
`Infbnnation to the extent that such disclosure is:
`
`Each Party may disclose Confidential
`
`5.3.] made in response to a valid order of a court of competent jurisdiction or
`other Governmental Entity or, if in the reasonable opinion of the receiving Party’s legal counsel,
`such disclosure is otherwise required by Applicable Law, including by reason of filing with
`securities regulators; provided, however, that the receiving Party shall first have given notice to
`the disclosing Party and given the disclosing Party a reasonable opportunity to quash such order
`or to obtain a protective order or confidential treatment order requiring that the Confidential
`Information and documents that are the subject of such order or are required by Applicable Law
`to be disclosed, as applicable, be held in confidence by such court or agency or, if disclosed, be
`used only for the purposes for which the order was issued or the disclosure was required by
`Applicable Law, as applicable; and provided, further, that the Confidential Information disclosed
`in response to such court or governmental order shall be limited to that information that is legally
`required to be disclosed in response to such court or governmental order; or
`
`5.3.2 made by or on behalf of the receiving Party or any of its Affiliates to its or
`their attorneys, auditors, advisors, consultants, contractors or any Governmental Entities or other
`Third Parties for use by such Person as may be necessary or reasonably useful in connection with
`the performance ofthe receiving Party’s obligations hereunder or exercising the rights and licenses
`of the receiving Party hereunder; provided, however,
`that such persons (excluding any
`Governmental Entity) shall be subject to obligations of confidentiality and non-use with respect to
`such Confidential Information substantially similar to the obligations of confidentiality and non-
`
`CONFIDENTIAL
`
`AGN_RES1 158908
`
`5%,,
`
`01-?
`
`@
`
`

`

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`Case 2:15-cv-01455-WCB Document 547-3 Filed 11/21/17 Page 12 of 29 PageID #: 26552
`
`use pursuant to this ARTICLE 5, either by written agreement or through professional responsibility
`standards.
`
`Allergen Permitted Disclosures. Allergan may disclose Confidential Information
`5.4
`of Licensor to the extent that such disclosure is:
`
`5.4.1 made by Allergan or any of its Afiiliates or its or their respective
`sublicensees to its or their attomeys, auditors, advisers, consultants, contractors, existing or
`prospective collaboration partners, licensees, sublicensees, or acquirers or any Governmental
`Entities or other Third Parties for use by such Person as may be necessary or reasonably useful in
`connection with the Exploitation of any product under the Licensed Patents by or on behalf of
`Allergan, or otherwise in connection with the performance of Allergan's obligations or exercise of
`Allergan's rights under this Agreement; provided, however,
`that such Persons (other than
`Governmental Entities) shall be subject to obligations of confidentiality and non-use with respect
`to such Confidential Information substantially similar to the obligations of confidentiality and non-
`use of Allergen pursuant to this ARTICLE 5, either through written agreement or professional
`responsibility standards; or
`
`5.4.2 made by or on behalfofAllergan to potential or actual investors or acquirers
`as may be necessary or reasonably useful in connection with their evaluation of such potential or
`actual
`investment or acquisition; provided, however,
`that such persons shall be subject
`to
`obligations of confidentiality and non-use with respect
`to such Confidential
`Information
`substantially similar to the obligations of confidentiality and non-use of Allergan pursuant to this
`ARTICLE 5, either through written agreement or professional responsibility standards.
`
`Use of Name. Neither Party shall mention or otherwise use the name, logo, or
`5.5
`trademark of the other Party or any of its Affiliates (or any abbreviation or adaptation thereof) in
`any publication, press release, marketing and promotional material, or other form of publicity
`without the prior written approval of such other Party in each instance. The restrictions imposed
`by this Section 5.5 shall not prohibit Allergan from making any disclosure identifying Licensor
`that is required by Applicable Law or the rules of a stock exchange on which the securities of
`Allergan are listed (or to which an application for listing has been submitted).
`
`Publications. The Parties recognize the desirability of publishing and publicly
`5.6
`disclosing the results of, and data or information regarding, the development ofproducts under the
`Licensed Patents. Accordingly, Allergen shall be free to publicly disclose the results of, and
`information regarding, the development of products under the Licensed Patents in a manner
`consistent with Applicable Law and industry practices. Licensor shall not make any publications
`or public disclosures regarding any product under the Licensed Patents.
`
`Return of Confidential Information. Upon the effective date of the expiration of
`5.7
`this Agreement for any reason, either Party may request in writing that the non-requesting Party
`either, at
`the requesting Party’s election:
`(a) promptly destroy all copies of Confidential
`Information in the possession or control of the non-requesting Party to which the non-requesting
`Party does not retain rights under the surviving provisions of this Agreement and confirm such
`destruction in writing to the requesting Party; or (b) promptly deliver to the requesting Party, at
`the non-requesting Party’s sole cost and expense, all copies of Confidential Information in the
`
`CONFIDENTIAL
`
`AGN_RES1 158909
`
`9
`
`0t
`
`ft’
`
`57’
`
`l’l
`’32:
`
`//¥
`
`til
`
`7
`
`

`

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`Case 2:15—cv-01455-WCB Document 547-3 Filed 11/21/17 Page 13 of 29 PagelD #: 26553
`
`possession or control of the non-requesting Party to which the non-requesting Party does not retain
`rights under the surviving provisions of this Agreement; provided, however, the non-requesting
`Party shall be permitted to retain one copy of such Confidential Infomation for the sole purpose
`of performing any continuing obligations hereunder or for archival purposes. Notwithstanding the
`foregoing, the non-requesting Party also shall be permitted to retain such additional c0pies of or
`any computer records or files containing such Confidential lnfonnation that have been created
`solely by the non-requesting Party’s automatic archiving and back-up procedures, to the extent
`created and retained in a marmer consistent with the non-requesting Party‘s standard archiving and
`back-up procedures, but not for any other use or purpose. All Confidential Information shall
`continue to be subject to the terms of this Agreement for the period set forth in Section 5.1.
`
`Publicity. Neither Alle