WHO HAVE NOT BEEN EXPOSED TO THE CONFIDENTIAL INFORMATION;
(B)
BECOMES KNOWN TO THE RECEIVING PARTY, WITHOUT
RESTRICTION, FROM A THIRD PARTY WITHOUT BREACH OF THIS AGREEMENT AND WHO HAD A
RIGHT TO DISCLOSE IT;
(C)
WAS IN THE PUBLIC DOMAIN AT THE TIME IT WAS DISCLOSED OR
BECOMES IN THE PUBLIC DOMAIN THROUGH NO ACT OR OMISSION OF THE RECEIVING PARTY;
20
(D)
WAS RIGHTFULLY KNOWN TO THE RECEIVING PARTY, WITHOUT
RESTRICTION, AT THE TIME OF DISCLOSURE (PROVIDED THAT THIS EXCLUSION SHALL NOT
APPLY TO THE CONFIDENTIAL INFORMATION); OR
(E)
IS DISCLOSED PURSUANT TO THE ORDER OR REQUIREMENT OF A
COURT, ADMINISTRATIVE AGENCY, OR OTHER GOVERNMENTAL BODY; PROVIDED, HOWEVER,
THAT THE RECEIVING PARTY SHALL PROVIDE PROMPT NOTICE THEREOF TO THE OTHER PARTY
AND SHALL USE REASONABLE EFFORTS TO COOPERATE WITH THE DISCLOSING PARTY IF IT
ELECTS TO OBTAIN A PROTECTIVE ORDER OR OTHERWISE PREVENT PUBLIC DISCLOSURE OF
SUCH INFORMATION ALL AT THE DISCLOSING PARTY'S EXPENSE.
19.3
EXCLUSIVITY PERIOD.
IN ORDER TO PRESERVE THE CONFIDENTIALITY OF
SUPERGEN'S CONFIDENTIAL INFORMATION AND TO PROTECT SUPERGEN'S SUBSTANTIAL
INVESTMENT OF MONEY, TIME AND REGULATORY ADVICE, HAUSER AGREES THAT FOR A PERIOD
BEGINNING ON THE EFFECTIVE DATE AND ENDING [***] YEARS AFTER THE LAST BATCH IS
PROCESSED ("EXCLUSIVITY PERIOD") UNDER THIS AGREEMENT, NEITHER HAUSER NOR ANY
RELATED ENTITY (AS DEFINED BELOW) WILL: (I) MANUFACTURE, SELL OR OTHERWISE
DISTRIBUTE THE PENTOSTATIN CRUDE CONCENTRATE OR API, EXCEPT AT THE DIRECTION OF
SUPERGEN; OR (II) ASSIST ANY THIRD PARTIES TO MANUFACTURE, SELL OR OTHERWISE
DISTRIBUTE THE PENTOSTATIN CRUDE CONCENTRATE OR THE API; OR (III) PERFORM ANY
RESEARCH OR OTHER SERVICES
WITH RESPECT TO THE PENTOSTATIN CRUDE CONCENTRATE OR
THE API.
A "RELATED ENTITY" IS ANY ENTITY: (I) CONTROLLED BY HAUSER; OR (II) IN
WHICH HAUSER HAS A SUBSTANTIAL EQUITY INTEREST; OR (III) THAT HAS THE ABILITY TO
CONTROL OR DIRECT WHAT IS DONE AT THE FACILITY AND HAS AN INDIRECT OR DIRECT
CORPORATE RELATIONSHIP WITH HAUSER.
UPON THE EXPIRATION OF THE EXCLUSIVITY
PERIOD, SUPERGEN SHALL PROVIDE PROMPT NOTICE TO HAUSER THAT INDICATES THE
EXCLUSIVITY PERIOD HAS EXPIRED.
THE EXCLUSIVITY PERIOD SUPERSEDES ALL PREVIOUS
AGREEMENTS BETWEEN THE PARTIES REGARDING EXCLUSIVITY, INCLUDING, WITHOUT
LIMITATION, THE PENTOSTATIN PROCESSING SERVICES AGREEMENT, DATED AS OF MAY 4,
2001, BY AND BETWEEN HAUSER AND SUPERGEN (THE "VALIDATION AGREEMENT").
THE
PARTIES ACKNOWLEDGE THAT HAUSER'S OBLIGATIONS WITH RESPECT TO THIS SECTION 19.3
SHALL APPLY SOLELY WITH RESPECT TO SUITE NUMBER ONE AT THE GUNBARREL FACILITY
(THE SUITE AT WHICH PROCESSING OF THE PENTOSTATIN CRUDE CONCENTRATE PURSUANT TO
THIS AGREEMENT IS COMPLETED) AND SHALL NOT LIMIT HAUSER'S OR A RELATED PARTY'S
ABILITY TO PROVIDE THE SERVICES SET FORTH IN SUBSECTIONS (I), (II) AND (III)
ABOVE AT LOCATIONS OTHER THAN SUITE NUMBER ONE OF THE GUNBARREL FACILITY.
FAILURE OF SUPERGEN TO PROVIDE NOTICE OF THE EXPIRATION OF THE EXCLUSIVITY
PERIOD, SHALL NOT BE DEEMED TO EXTEND THE EXCLUSIVITY PERIOD.
20.
INDEPENDENT CONTRACTOR
The parties are independent contractors.
Neither party shall be deemed to be an
employee, agent, partner or legal representative of the other for any purpose