THE RECEIVING PARTY CAN
ESTABLISH:
(A)
WAS ALREADY KNOWN BY THE RECEIVING PARTY (OTHER THAN UNDER AN
OBLIGATION OF CONFIDENTIALITY) AT THE TIME OF DISCLOSURE BY THE DISCLOSING
PARTY, AND SUCH RECEIVING PARTY HAS CONTEMPORANEOUS DOCUMENTARY EVIDENCE TO THAT
EFFECT (PROVIDED THAT THIS EXCEPTION WILL NOT RELIEVE EXACT OF ITS
CONFIDENTIALITY OBLIGATIONS WITH RESPECT TO THE PURCHASED ASSETS AND TRANSFERRED
TECHNOLOGY);
(B)
WAS AVAILABLE TO THE PUBLIC OR OTHERWISE PART OF THE PUBLIC DOMAIN AT
THE TIME OF ITS DISCLOSURE TO THE RECEIVING PARTY;
(C)
BECAME AVAILABLE TO THE PUBLIC OR OTHERWISE PART OF THE PUBLIC DOMAIN
AFTER ITS DISCLOSURE OR DEVELOPMENT, AS THE CASE MAY BE, AND OTHER THAN THROUGH
ANY ACT OR OMISSION OF THE RECEIVING PARTY IN BREACH OF A CONFIDENTIALITY
OBLIGATION TO THE DISCLOSING PARTY;
(D)
WAS DISCLOSED TO THE RECEIVING PARTY, OTHER THAN UNDER AN OBLIGATION OF
CONFIDENTIALITY, BY A THIRD PARTY WHO HAD NO OBLIGATION TO THE DISCLOSING PARTY
NOT TO DISCLOSE SUCH INFORMATION TO OTHERS; OR
(E)
WAS INDEPENDENTLY DISCOVERED OR DEVELOPED BY OR ON BEHALF OF THE
RECEIVING PARTY WITHOUT THE USE OF THE CONFIDENTIAL INFORMATION BELONGING TO THE
OTHER PARTY, AND THE RECEIVING PARTY HAS CONTEMPORANEOUS DOCUMENTARY EVIDENCE TO
THAT EFFECT.
13.2
PERMITTED DISCLOSURE.
THE RECEIVING PARTY MAY DISCLOSE THE
DISCLOSING PARTY'S CONFIDENTIAL INFORMATION ONLY TO (A) THOSE OF ITS AND ITS
AFFILIATES' DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONSULTANTS AND ADVISORS
(COLLECTIVELY, "REPRESENTATIVES") WHO HAVE A NEED TO KNOW SUCH CONFIDENTIAL
INFORMATION FOR PURPOSES OF PERFORMING THE RECEIVING PARTY'S OBLIGATIONS OR
EXERCISING THE RECEIVING PARTY'S RIGHTS UNDER THIS AGREEMENT (A "NEED-TO-KNOW")
AND (B) THOSE OF ITS POTENTIAL AND ACTUAL LICENSEES, SUBLICENSEES, ACQUIRERS,
LENDERS AND INVESTORS WHO HAVE A NEED-TO-KNOW OR OTHER LEGITIMATE BUSINESS
PURPOSE, PROVIDED, HOWEVER, THAT EACH PERSON TO WHOM THE DISCLOSING PARTY'S
CONFIDENTIAL INFORMATION IS DISCLOSED IS UNDER RESTRICTIONS AT LEAST AS
STRINGENT WITH RESPECT TO THE USE AND DISCLOSURE OF SUCH CONFIDENTIAL
INFORMATION AS SET FORTH IN THIS AGREEMENT (OR, IF SUCH CONFIDENTIALITY
OBLIGATIONS WERE IN PLACE PRIOR TO THE EFFECTIVE DATE, ON THE TERMS OF SUCH
OBLIGATIONS).
EACH PARTY WILL BE LIABLE FOR THE BREACH OF THIS AGREEMENT BY ANY
OF ITS REPRESENTATIVES OR ITS LICENSEES OR SUBLICENSEES.
13.3
REQUIRED DISCLOSURE.
NOTWITHSTANDING ANY PROVISION OF THIS
ARTICLE 13 TO THE CONTRARY, IN THE EVENT THAT DISCLOSURE OF THE DISCLOSING
PARTY'S CONFIDENTIAL INFORMATION IS REASONABLY NECESSARY TO PROSECUTE OR DEFEND
ANY ACTION OR TO MAKE FILINGS OR SUBMISSIONS TO, OR CORRESPOND WITH, ANY
GOVERNMENTAL AUTHORITY OR TO COMPLY WITH APPLICABLE LAW (INCLUDING THE RULES OF
AND REGULATION OF THE SECURITIES AND EXCHANGE COMMISSION), THE RECEIVING PARTY
MAY MAKE SUCH DISCLOSURE.
IN SUCH EVENT HOWEVER, (A) THE RECEIVING PARTY WILL
(I) GIVE REASONABLE ADVANCE NOTICE OF SUCH DISCLOSURE TO THE DISCLOSING PARTY,
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.
39
(II) PROVIDE REASONABLE ASSISTANCE TO THE DISCLOSING PARTY IN SEEKING A