OF THIS AGREEMENT
AND NO OTHERS UNLESS PREVIOUSLY IDENTIFIED IN WRITING TO AND AGREED TO BY LB AND
IMCLONE; AND CONTRACTORS WHO ARE SUBJECT TO THE SAME OBLIGATIONS OF
CONFIDENTIALITY AS LB AND IMCLONE UNDER APPROPRIATE SECRECY AGREEMENTS.
16.3.
THIRD PARTIES.
LB AND IMCLONE EACH UNDERTAKE NOT TO DISCLOSE OR
PERMIT TO BE DISCLOSED TO ANY THIRD PARTY, OR OTHERWISE MAKE USE OF OR PERMIT TO
BE MADE USE OF, ANY TRADE SECRETS OR CONFIDENTIAL INFORMATION RELATING TO THE
TECHNOLOGY, BUSINESS AFFAIRS OR FINANCES OF THE OTHER, ANY AFFILIATE OF THE
OTHER, OR OF ANY SUPPLIERS, AGENTS, DISTRIBUTORS, LICENSEES OR OTHER CUSTOMERS
OF THE OTHER WHICH COME INTO ITS POSSESSION UNDER THIS AGREEMENT.
16.4.
EXCEPTIONS.
THE CONFIDENTIALITY OBLIGATIONS UNDER THIS ARTICLE 16
SHALL NOT EXTEND TO ANY INFORMATION WHICH:
16.4.1.
IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHERWISE THAN BY
REASON OF A BREACH BY THE RECEIVING PARTY OF THE PROVISIONS OF THIS ARTICLE 16;
[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
39
16.4.2.
IS KNOWN TO THE RECEIVING PARTY PRIOR TO ITS RECEIPT FROM THE
DISCLOSING PARTY FREE OF ANY CONFIDENTIALITY OBLIGATION TO ANY THIRD PARTY;
16.4.3.
IS SUBSEQUENTLY DISCLOSED TO THE RECEIVING PARTY WITHOUT BEING MADE
SUBJECT TO AN OBLIGATION OF CONFIDENCE BY A THIRD PARTY; OR
16.4.4.
THE RECEIVING PARTY CAN DEMONSTRATE BY COMPETENT EVIDENCE WAS
INDEPENDENTLY DISCOVERED BY THE RECEIVING PARTY OR ITS EMPLOYEES WITHOUT
REFERENCE TO ANY INFORMATION RECEIVED FROM THE OTHER PARTY HERETO.
Notwithstanding the foregoing, either LB or ImClone may disclose confidential
information to the extent such disclosure is required by applicable law, court
order, statutory, regulatory, stock exchange or similar legislative requirement,
provided that the party making such required disclosure notifies the other party
as soon as possible to enable the parties to obtain a protective order against
such disclosure.
16.5.
NO LICENSE.
EACH PARTY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY
PROVIDED HEREIN OR PURSUANT TO A SEPARATE AGREEMENT BETWEEN THE PARTIES EXISTING
NOW OR ENTERED INTO IN THE FUTURE, SUCH PARTY SHALL NOT BY VIRTUE OF THIS
AGREEMENT AT ANY TIME HAVE ANY RIGHT, TITLE, LICENSE OR INTEREST IN OR TO THE LB
INFORMATION, LB PATENT RIGHTS, IMCLONE INFORMATION, IMCLONE MATERIAL, OR IMCLONE
PATENT RIGHTS AS THE CASE MAY BE, OR ANY OTHER INTELLECTUAL PROPERTY RIGHTS
RELATING TO THE 5000 LITER PROCESS WHICH ARE OWNED BY THE OTHER PARTY OR ITS
AFFILIATES OR TO WHICH THE OTHER PARTY OR ITS AFFILIATES IS OTHERWISE ENTITLED.
17.
TERMINATION.
17.1 IN THE EVENT THAT LB FAILS TO COMPLY WITH CGMP AND IS UNABLE TO CONTINUE TO
MANUFACTURE PRODUCT UNDER FDA REGULATIONS AND SHOULD LB BE UNABLE OR UNWILLING
TO RESOLVE THE NON-COMPLIANCE AND REGAIN A STATE OF COMPLIANCE WITHIN 90 DAYS OF
RECEIVING NOTICE FROM THE
[*****] REPRESENTS CONFIDENTIAL PORTION WHICH HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED WITH RESPECT