THIS AGREEMENT OR AS OTHERWISE
EXPRESSLY PERMITTED HEREUNDER; (B) NOT TO DISCLOSE SUCH CONFIDENTIAL INFORMATION
EXCEPT TO ITS EMPLOYEES (OR THIRD PARTY SUBCONTRACTORS) WHO HAVE A NEED TO KNOW
SUCH CONFIDENTIAL INFORMATION FOR PURPOSES OF THIS AGREEMENT AND WHO ARE BOUND
TO A WRITTEN AGREEMENT PROTECTING SUCH CONFIDENTIAL INFORMATION AS REQUIRED
HEREBY; AND (C) TO PROTECT SUCH CONFIDENTIAL INFORMATION FROM UNAUTHORIZED USE,
ACCESS OR DISCLOSURE IN THE SAME MANNER THAT IT PROTECTS ITS OWN SIMILAR
CONFIDENTIAL INFORMATION, BUT NOT LESS THAN A REASONABLE DEGREE OF CARE.
16.2
EXCLUSIONS.
CONFIDENTIAL INFORMATION DOES NOT
INCLUDE ANY INFORMATION THAT THE RECEIVING PARTY CAN SHOW:
(A)
IS OR BECOMES PUBLICLY AVAILABLE (OTHER THAN THROUGH UNAUTHORIZED
DISCLOSURE BY THE RECEIVING PARTY);
23
(B)
IS SHOWN BY WRITTEN RECORD TO HAVE BEEN IN THE POSSESSION OF OR KNOWN TO
THE RECEIVING PARTY PRIOR TO ITS DISCLOSURE HEREUNDER; OR
(C)
IS MADE AVAILABLE WITHOUT RESTRICTION TO THE RECEIVING PARTY BY ANY PERSON
OTHER THAN THE DISCLOSING PARTY WITHOUT BREACH OF ANY OBLIGATION OF
CONFIDENTIALITY OF SUCH OTHER PERSON.
16.3
DISCLOSURE IN JUDICIAL OR OTHER PROCEEDINGS.
NOTWITHSTANDING THE FOREGOING, THE RECEIVING PARTY MAY DISCLOSE CONFIDENTIAL
INFORMATION IN A JUDICIAL, LEGISLATIVE OR ADMINISTRATIVE INVESTIGATION OR
PROCEEDING OR TO A GOVERNMENT OR OTHER REGULATORY AGENCY (INCLUDING ANY
SECURITIES REGULATORY AGENCY OR STOCK EXCHANGE); PROVIDED THAT, RECEIVING PARTY
PROVIDES TO DISCLOSING PARTY PRIOR NOTICE OF THE INTENDED DISCLOSURE AND SHALL
PERMIT THE DISCLOSING PARTY TO INTERVENE THEREIN TO PROTECT ITS INTERESTS IN ITS
CONFIDENTIAL INFORMATION, AND PROVIDE FULL COOPERATION AND ASSISTANCE TO
DISCLOSING PARTY IN SEEKING TO OBTAIN SUCH PROTECTION.
16.4
INJUNCTIVE RELIEF.
EACH PARTY ACKNOWLEDGES AND
AGREES THAT DISCLOSURE OR USE OF CONFIDENTIAL INFORMATION OF THE OTHER PARTY IN
VIOLATION OF THIS AGREEMENT MAY RESULT IN IRREPARABLE HARM TO SUCH OTHER PARTY.
ACCORDINGLY, IN ADDITION TO ANY OTHER LEGAL REMEDIES WHICH MAY BE AVAILABLE TO
IT, IN THE EVENT OF ANY ACTUAL OR THREATENED BREACH OF THIS SECTION 16.4, EACH
PARTY HAS THE RIGHT TO IMMEDIATELY OBTAIN INJUNCTIVE RELIEF.
16.5
RETURN OF CONFIDENTIAL INFORMATION.
UPON
TERMINATION OF THIS AGREEMENT, RECEIVING PARTY WILL, AT DISCLOSING PARTY'S
WRITTEN REQUEST, PROMPTLY DELIVER TO DISCLOSING PARTY OR DESTROY ALL MEMOS,
NOTES, RECORDS, REPORTS, MEDIA, DOCUMENTS AND MATERIALS (AND ALL COPIES THEREOF)
REGARDING OR INCLUDING ANY CONFIDENTIAL INFORMATION WHICH RECEIVING PARTY MAY
THEN POSSESS OR HAVE UNDER ITS CONTROL AND, UPON REQUEST BY THE DISCLOSING
PARTY, CERTIFY TO SUCH RETURN OR DESTRUCTION.
17.
Term; Termination.
17.1
TERM.
THE INITIAL TERM OF THIS AGREEMENT SHALL
BE FROM THE EFFECTIVE DATE UNTIL SEPTEMBER 30, 2008 (THE "INITIAL TERM").
THEREAFTER, THIS AGREEMENT SHALL BE AUTOMATICALLY RENEWED FOR AN ADDITIONAL TERM
ENDING ON SEPTEMBER 30, 2013 (THE "RENEWAL TERM" AND COLLECTIVELY WITH THE
INITIAL TERM, THE "TERM"); PROVIDED THAT AS OF ANY DATE SUBSEQUENT TO
SEPTEMBER 30, 2008:
(A)
EITHER PARTY MAY TERMINATE THIS AGREEMENT UPON 365 DAYS PRIOR WRITTEN
NOTICE IN THE EVENT THAT AB AND ALL OF THE SELLER AFFILIATES WILL CEASE ANY AND
ALL MARKETING, DISTRIBUTING AND SELLING OF ANY 1-D PRODUCTS (OTHER THAN PRODUCTS