Common use of Cleansing Clause in Contracts

Cleansing. Notwithstanding anything, under any of the Settlement Documents or otherwise, the receipt of Confidential Information shall not in any way limit or restrict VIVUS or any of its affiliates, and does not constitute, and shall not be construed to create, a standstill or any other restriction whatsoever on the ability of VIVUS or any of its affiliates to (i) purchase or sell securities or other instruments, including those of a Group Member, (ii) purchase or sell any such companies substantially in their entirety (whether by merger, asset sale or otherwise), (iii) provide financing to any such companies or (iv) conduct similar activities in the ordinary course of VIVUS or any of its affiliates’ businesses in the same manner as they are presently conducted. In the event that any Confidential Information disclosed to VIVUS constitutes material nonpublic information about Metuchen or any Group Member, within 5 days following the end of each quarterly fiscal period or any material breach or default or a Settlement Document, Petros shall file a document (the “Cleansing Document”) containing such Confidential Information (or an appropriate summary thereof) (the “Disclosure Information”) with the SEC, including appropriate exceptions for information disclosed to VIVUS’s outside advisors and specifically designated as “non-cleansing” or “advisors’ eyes only” information (or other similar designation) with ▇▇▇▇▇’ prior written consent. As promptly as practicable, but in no event less than 48 hours before the filing of the Cleansing Document, ▇▇▇▇▇▇ will provide VIVUS with a draft of the Cleansing Document and will consider in good faith any timely comments VIVUS has with respect to the Cleansing Document. In the event that ▇▇▇▇▇▇ fails to timely file the required Cleansing Document or such Cleansing Document does not contain all of the Disclosure Information as determined by VIVUS based on the advice of its legal counsel, then Petros, on behalf of itself and any Group Member, agrees that VIVUS or its representatives (each an “Authorized Cleansing Party”) shall be authorized to make available to the public at any time more than two (2) business days thereafter (and notwithstanding if this Agreement has been terminated) all the Disclosure Information not so disclosed by ▇▇▇▇▇▇ in a single disclosure; provided that before any such disclosure such Authorized Cleansing Party shall (i) so long as (but only if) the Cleansing Document is delivered by ▇▇▇▇▇▇, notify Petros of its intent to disclose any such Disclosure Information within 48 hours after its receipt of the Cleansing Document and (ii) provide Petros with a draft of the documents VIVUS intends to use to publicly disclose such Disclosure Information at least 48 hours prior to any such disclosure. During such periods, such Authorized Cleansing Party and its legal counsel will make a reasonable effort to consult with ▇▇▇▇▇▇ and its legal counsel regarding the content of any such disclosure and to consider in good faith any comments that ▇▇▇▇▇▇ has with respect thereto (including, without limitation, as to whether ▇▇▇▇▇▇ has previously disclosed all Disclosure Information). ▇▇▇▇▇▇ agrees, on behalf of itself and each Group Member, that none of VIVUS or its affiliates, or any of their representatives, shall have any liability to any Group Member, or any of their representatives in connection with the disclosure of the Disclosure Information in accordance with the foregoing except in the case of an intentional misrepresentation. Petros shall agree to and acknowledge this section on behalf of itself and all of its present and future subsidiaries and affiliates.

Cleansing. Notwithstanding anything, under any of the Settlement Documents or otherwise, the receipt of Confidential Information shall not in any way limit or restrict VIVUS or any of its affiliates, and does not constitute, and shall not be construed to create, a standstill or any other restriction whatsoever on the ability of VIVUS or any of its affiliates to (i) purchase or sell securities or other instruments, including those of a Group Member, (ii) purchase or sell any such companies substantially in their entirety (whether by merger, asset sale or otherwise), (iii) provide financing to any such companies or (iv) conduct similar activities in the ordinary course of VIVUS or any of its affiliates’ businesses in the same manner as they are presently conducted. In the event that any Confidential Information disclosed to VIVUS constitutes material nonpublic information about Metuchen or any Group Member, within 5 days following the end of each quarterly fiscal period or any material breach or default or a Settlement Document, Petros shall file a document (the “Cleansing Document”) containing such Confidential Information (or an appropriate summary thereof) (the “Disclosure Information”) with the SEC, including appropriate exceptions for information disclosed to VIVUS’s outside advisors and specifically designated as “non-cleansing” or “advisors’ eyes only” information (or other similar designation) with ▇▇▇▇▇VIVUS’ prior written consent. As promptly as practicable, but in no event less than 48 hours before the filing of the Cleansing Document, ▇▇▇▇▇▇ Petros will provide VIVUS with a draft of the Cleansing Document and will consider in good faith any timely comments VIVUS has with respect to the Cleansing Document. In the event that ▇▇▇▇▇▇ Petros fails to timely file the required Cleansing Document or such Cleansing Document does not contain all of the Disclosure Information as determined by VIVUS based on the advice of its legal counsel, then Petros, on behalf of itself and any Group Member, agrees that VIVUS or its representatives (each an “Authorized Cleansing Party”) shall be authorized to make available to the public at any time more than two (2) business days thereafter (and notwithstanding if this Agreement has been terminated) all the Disclosure Information not so disclosed by ▇▇▇▇▇▇ Petros in a single disclosure; provided that before any such disclosure such Authorized Cleansing Party shall (i) so long as (but only if) the Cleansing Document is delivered by ▇▇▇▇▇▇Petros, notify Petros of its intent to disclose any such Disclosure Information within 48 hours after its receipt of the Cleansing Document and (ii) provide Petros with a draft of the documents VIVUS intends to use to publicly disclose such Disclosure Information at least 48 hours prior to any such disclosure. During such periods, such Authorized Cleansing Party and its legal counsel will make a reasonable effort to consult with ▇▇▇▇▇▇ Petros and its legal counsel regarding the content of any such disclosure and to consider in good faith any comments that ▇▇▇▇▇▇ Petros has with respect thereto (including, without limitation, as to whether ▇▇▇▇▇▇ Petros has previously disclosed all Disclosure Information). ▇▇▇▇▇▇ Petros agrees, on behalf of itself and each Group Member, that none of VIVUS or its affiliates, or any of their representatives, shall have any liability to any Group Member, or any of their representatives in connection with the disclosure of the Disclosure Information in accordance with the foregoing except in the case of an intentional misrepresentation. Petros shall agree to and acknowledge this section on behalf of itself and all of its present and future subsidiaries and affiliates.

Cleansing. Notwithstanding anythingThe Company shall, by 9:00 a.m., New York City time, on the first Business Day immediately following the date of this Agreement, issue one or more press releases or file with the SEC a Current Report on Form 8-K (collectively, the “Disclosure Document”) disclosing or otherwise making publicly available all material terms of the transactions contemplated hereby and any other information that the Company has provided to the Purchasers in connection with the Common Stock Equity Offering at any time prior to the filing of the Disclosure Document that constitutes material, nonpublic information as of such date and time and the Purchasers shall no longer be subject to any confidentiality or similar obligations under any current agreement, whether written or oral with the Company, the Placement Agents, or any of their respective Affiliates in connection with the transactions contemplated hereby. Upon the issuance of the Settlement Documents or otherwiseDisclosure Document, no Purchaser shall be in possession of any material, non-public information received from the receipt of Confidential Information shall not in any way limit or restrict VIVUS Company or any of its affiliatesrespective officers, and does not constitutedirectors, and employees or agents in connection with the Common Stock Equity Offering. Notwithstanding anything in this Agreement to the contrary, the Company shall not be construed to create, a standstill or publicly disclose the name of any other restriction whatsoever on the ability of VIVUS Purchaser or any of its affiliates to their respective Affiliates or investment advisers, or include the name of any Purchaser or any of their respective Affiliates or investment advisers (i) purchase in any press release or sell securities marketing materials without the prior written consent of such Purchaser or other instruments, including those of a Group Member, (ii) purchase or sell in any such companies substantially in their entirety (whether by merger, asset sale or otherwise), (iii) provide financing to any such companies or (iv) conduct similar activities in the ordinary course of VIVUS filing with SEC or any regulatory agency or trading market, without the prior written consent of its affiliates’ businesses such Purchasers, except (A) as required by the federal securities law in connection with the same manner Shelf Registration Statement (as they are presently conducted. In defined in that certain Registration Rights Agreement, dated on or about the event that any Confidential Information disclosed to VIVUS constitutes material nonpublic information about Metuchen or any Group Memberdate hereof, within 5 days following among the end Company and the Purchasers) (B) the filing of each quarterly fiscal period or any material breach or default this Agreement (or a Settlement Document, Petros shall file a document (the “Cleansing Document”) containing such Confidential Information (or an appropriate summary thereof) (the “Disclosure Information”form of this Agreement) with the SEC, including appropriate exceptions for information disclosed and (C) to VIVUS’s outside advisors and specifically designated as “non-cleansing” the extent such disclosure is required by law, at the request of the Staff of the SEC or “advisors’ eyes only” information (regulatory agency or other similar designation) under the regulations of NASDAQ, in which case the Company shall provide such Purchasers with ▇▇▇▇▇’ prior written consent. As promptly as practicable, but in no event less than 48 hours before the filing notice of the Cleansing Document, ▇▇▇▇▇▇ will provide VIVUS with a draft of the Cleansing Document and will consider in good faith any timely comments VIVUS has with respect to the Cleansing Document. In the event that ▇▇▇▇▇▇ fails to timely file the required Cleansing Document or such Cleansing Document does not contain all of the Disclosure Information as determined by VIVUS based on the advice of its legal counsel, then Petros, on behalf of itself and any Group Member, agrees that VIVUS or its representatives (each an “Authorized Cleansing Party”) shall be authorized to make available to the public at any time more than two (2) business days thereafter (and notwithstanding if this Agreement has been terminated) all the Disclosure Information not so disclosed by ▇▇▇▇▇▇ in a single disclosure; provided that before any such disclosure such Authorized Cleansing Party shall (i) so long as (but only if) the Cleansing Document is delivered by ▇▇▇▇▇▇, notify Petros of its intent to disclose any such Disclosure Information within 48 hours after its receipt of the Cleansing Document and permitted under this subclause (ii) provide Petros with a draft of the documents VIVUS intends to use to publicly disclose such Disclosure Information at least 48 hours prior to any such disclosure. During such periods, such Authorized Cleansing Party and its legal counsel will make a reasonable effort to consult with ▇▇▇▇▇▇ and its legal counsel regarding the content of any such disclosure and to consider in good faith any comments that ▇▇▇▇▇▇ has with respect thereto (including, without limitation, as to whether ▇▇▇▇▇▇ has previously disclosed all Disclosure Information). ▇▇▇▇▇▇ agrees, on behalf of itself and each Group Member, that none of VIVUS or its affiliates, or any of their representatives, shall have any liability to any Group Member, or any of their representatives in connection with the disclosure of the Disclosure Information in accordance with the foregoing except in the case of an intentional misrepresentation. Petros shall agree to and acknowledge this section on behalf of itself and all of its present and future subsidiaries and affiliates.