NOT APPLY TO ANY
CONFIDENTIAL INFORMATION WHICH: (A) WAS KNOWN BY THE RECEIVING PARTY AS
EVIDENCED BY ITS WRITTEN RECORDS MADE PRIOR TO THE TIME OF RECEIPT HEREUNDER;
(B) EITHER BEFORE OR AFTER THE TIME OF DISCLOSURE BECOMES KNOWN TO THE PUBLIC
OTHER THAN THROUGH A BREACH BY THE RECEIVING PARTY OR ITS AFFILIATES, EMPLOYEES,
AGENTS, CONTRACTORS, OR CONSULTANTS OF ITS OBLIGATIONS UNDER THIS AGREEMENT;
(C) WAS LAWFULLY DISCLOSED TO THE RECEIVING PARTY BY A THIRD PARTY HAVING THE
RIGHT TO DISCLOSE SAID CONFIDENTIAL INFORMATION; OR (D) WAS INFORMATION
DEVELOPED BY THE RECEIVING PARTY INDEPENDENTLY FROM THE CONFIDENTIAL INFORMATION
PROVIDED BY THE OTHER PARTY HERETO AS EVIDENCED BY THE RECEIVING PARTY'S WRITTEN
RECORDS.
10.4
REQUIRED DISCLOSURES.
THE RECEIVING PARTY SHALL ALSO BE ENTITLED TO
DISCLOSE THE OTHER PARTY'S CONFIDENTIAL INFORMATION TO THE EXTENT SUCH
CONFIDENTIAL INFORMATION IS REQUIRED TO BE DISCLOSED (A) TO OR BY ANY
GOVERNMENTAL AUTHORITY; (B) TO COMPLY WITH APPLICABLE LAWS (INCLUDING, WITHOUT
LIMITATION, TO COMPLY WITH SEC, NASDAQ OR STOCK EXCHANGE DISCLOSURE
REQUIREMENTS), (C) TO COMPLY WITH JUDICIAL PROCESS OR AN ORDER OF ANY
GOVERNMENTAL BODY OR A COURT OF COMPETENT JURISDICTION, OR (D) TO DEFEND OR
PROSECUTE LITIGATION, OR (E) EXERCISE ITS RIGHTS TO SEEK PATENT PROTECTION OR
ENFORCE PATENT RIGHTS OR MAKE REGULATORY FILINGS; PROVIDED, HOWEVER, THAT IN
EACH CASE THE PARTY REQUIRED TO DISCLOSE SUCH CONFIDENTIAL INFORMATION UNDER
SUBSECTIONS (A) THROUGH (D) SHALL USE REASONABLE EFFORTS TO NOTIFY THE OTHER
PARTY IN ADVANCE OF SUCH DISCLOSURE AND SHALL PROVIDE THE DISCLOSING PARTY WITH
REASONABLE ASSISTANCE TO OBTAIN A PROTECTIVE ORDER AND/OR CONFIDENTIAL TREATMENT
OF SUCH CONFIDENTIAL INFORMATION, TO THE EXTENT AVAILABLE, AND THEREAFTER ONLY
DISCLOSES THE MINIMUM CONFIDENTIAL INFORMATION REQUIRED TO BE DISCLOSED IN ORDER
TO ENSURE LEGAL COMPLIANCE.
10.5
TERM.
THIS UNDERTAKING TO KEEP INFORMATION CONFIDENTIAL EXTENDS
THROUGH THE TERM OF THIS AGREEMENT AND WILL SURVIVE THE EXPIRATION OR
TERMINATION OF THIS AGREEMENT FOR A PERIOD OF FIVE (5) YEARS.
10.6
PUBLIC DISCLOSURES.
UPON THE EXECUTION DATE, EACH PARTY SHALL HAVE
THE RIGHT TO ISSUE A PRESS RELEASE ANNOUNCING THE EXISTENCE OF THIS AGREEMENT
HAVING A FORM AND SUBSTANCE MUTUALLY AGREED UPON BY THE PARTIES.
EXCEPT AS
REQUIRED BY APPLICABLE LAWS OR RULES OF A SECURITIES EXCHANGE, EACH PARTY AGREES
NOT TO ISSUE ANY OTHER PRESS RELEASE OR MAKE ANY OTHER PUBLIC STATEMENT OR OTHER
DISCLOSURE DISCLOSING TO ANY THIRD PARTY ANY INFORMATION RELATING TO THIS
AGREEMENT OR ITS TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY WITHOUT THE PRIOR
WRITTEN CONSENT
36
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
OF THE OTHER PARTY, SUCH CONSENT NOT TO BE UNREASONABLY WITHHELD, DELAYED, OR
CONDITIONED; PROVIDED HOWEVER THAT AFTER ANY INFORMATION REGARDING THIS
AGREEMENT OR ITS TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY IS PUBLICLY
DISCLOSED, IT MAY THEREAFTER BE DISCLOSED BY EITHER PARTY AGAIN IN THE FUTURE
WITHOUT THE NEED TO OBTAIN THE OTHER PARTY'S CONSENT.
NOTWITHSTANDING THE
FOREGOING, A PARTY MAY DISCLOSE THE TERMS OF THIS AGREEMENT IN CONFIDENCE TO ITS