2Exceptions. The Receiving Party’s obligations under Section 7.1 shall not apply to any Confidential Information of the Disclosing Party that the Receiving Party can prove by competent evidence: (a) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party in breach of this Agreement, generally known or available; (b) is known by the Receiving Party at the time of receiving such information from the Disclosing Party; (c) is hereafter furnished to the Receiving Party by a Third Party, as a matter of right and without restriction on disclosure; or (d) is independently discovered or developed by the Receiving Party, without the aid, use or application of any Confidential Information of the Disclosing Party.
2Exceptions. This Agreement imposes no obligation upon the Parties with respect to Confidential Information which:
(a) was in the Party’s possession on a non-confidential basis before receipt from one another;
(b) is or becomes generally available to the public other than as a result of a violation of this Agreement by the Parties.
(c) is subsequently received by the Parties from a third party on a non-confidential basis, provided that such third party was not known by the Parties to be bound by any confidentiality obligation to each other with respect to such information; or
(d) is independently developed by the Parties without the use of or reference to Confidential Information.
2Exceptions. Notwithstanding the foregoing, a Party may use and disclose Confidential Information of the other Party as follows:
2Exceptions. Notwithstanding any provision to the contrary in this Lease, Tenant or Tenant’s Affiliate shall have the right, without Landlord’s consent but upon prior written notice to Landlord, at any one time or multiple times during the Term, to:
(a) assign or sublease this Lease to an Affiliate of Tenant;
(b) assign or sublease this Lease to a Permitted Transferee;
(c) consummate a public offering of common stock or other equity interests of Tenant (including any public offering of common stock or other equity interests of Tenant that may result in a Change of Control) on a nationally or regionally recognized exchange, and following any such public offering, transfers of shares on a nationally or regionally recognized exchange shall be permitted;
(d) consummate a public offering of common stock or other equity interests of Guarantor, or any direct or indirect controlling party of any of Guarantor (including any public offering of common stock or other equity interests of Guarantor, or any direct or indirect controlling party of Guarantor that may result in a Change of Control) on a nationally or regionally recognized exchange, and following any such public offering, transfers of shares on a nationally or regionally recognized exchange shall be permitted;
(e) (i) sublease, license, or enter into an occupancy agreement with respect to up to 20% of the floor area of the Premises, or (ii) enter into a concession agreement or kiosk agreement, if (x) the use contemplated under any such sublease, license, concession agreement, kiosk agreement or occupancy agreement does not breach the provisions of Article X hereof and (y) such sublease, license, concession agreement, kiosk agreement or occupancy agreement does not release Tenant from any of its obligations under this Lease;
(f) encumber, pledge, hypothecate or otherwise mortgage Tenant’s interest in the leasehold estate created by this Lease, subject to the terms of Section 19.5 below;
(g) have any change of ownership or control of Xxxxxxx Xxxxx & Partners, L.P., and/or TPG Capital, L.P. (collectively, the “Fund Entities”) or a subsidiary or fund or other entity affiliated, directly or indirectly, with any of the Fund Entities; or
(h) assign this Lease to an assignee that does not acquire all or substantially all of Tenant’s assets or a direct or indirect controlling interest in Tenant or Tenant’s members, shareholders, or owners if the assignee has (1) a net worth of at least $1,000,000,000, and (2) an EBITDA of at leas...
2Exceptions. The obligations in Section 10.1 shall not apply with respect to any portion of the Confidential Information that the Receiving Party can show by competent written evidence:
(a) is publicly disclosed by the Disclosing Party, either before or after it is disclosed to the Receiving Party hereunder;
(b) is known to the Receiving Party or any of its Affiliates, without any obligation to keep it confidential or any restriction on its use, prior to disclosure by the Disclosing Party;
(c) is subsequently disclosed to the Receiving Party or any of its Affiliates on a non-confidential basis by a Third Party that, to the Receiving Party’s Knowledge, is not bound by a similar duty of confidentiality or restriction on its use;
(d) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party or any of its Affiliates, generally known or available, either before or after it is disclosed to the Receiving Party;
(e) is independently discovered or developed by or on behalf of the Receiving Party or any of its Affiliates without the use of Confidential Information belonging to the Disclosing Party; or
(f) is the subject of written permission to disclose provided by the Disclosing Party.
2Exceptions. Novan’s obligations of confidentiality and non-use under Section 12.1 shall not apply and Novan shall have no further obligations with respect to any of the Sato Confidential Information as far as Novan can establish by competent proof that such Saxx Xonfidential Information:
(i) is or becomes part of the public domain without breach by Novan of this Agreement;
(ii) was in Novan’s possession before disclosure by Saxx xo Novan and was not acquired directly or indirectly from Saxx;
(iii) is obtained from a Third Party with no obligation of confidentiality to Saxx, who has a right to disclose it to Noxxx;
(iv) is developed by Novan without using any Sato Confidential Information; or
(v) is required to be revealed in response to a court decision or administrative order, or to comply with applicable Laws of a governmental authority or rules of a securities exchange, in which case Novan shall inform Saxx xmmediately by written notice and cooperate with Saxx xsing Commercially Reasonable Efforts either to enable Saxx xo seek protective measures for such Sato Confidential Information, or to seek confidential treatment of such Sato Confidential Information, and in such case Novan shall disclose only such portion of the Sato Confidential Information which is so required to be disclosed.
2Exceptions. The obligations set forth in Section 4.1 as to particular Confidential Information of a Disclosing Party shall not apply to the extent that the Receiving Party can demonstrate through competent evidence that such Confidential Information:
(a) is known by the Receiving Party at the time of its receipt without an obligation of confidentiality, and not through a prior disclosure by the Disclosing Party, as documented by the Receiving Party’s business records;
(b) is in the public domain before its receipt from the Disclosing Party, or thereafter enters the public domain through no fault of the Receiving Party;
(c) is subsequently disclosed to the Receiving Party by a Third Party who may lawfully do so and is not under an obligation of confidentiality to the Disclosing Party; or
(d) is developed by the Receiving Party independently and without use of or reference to any Confidential Information received from the Disclosing Party, as documented by the Receiving Party’s business records. No combination of features or disclosures shall be deemed to fall within the foregoing exclusions merely because individual features are published or available to the general public or in the rightful possession of the Receiving Party, unless the combination itself and principle of operation are published or available to the general public or in the rightful possession of the Receiving Party.
2Exceptions. (a) The restrictions set forth in Section 14.1 will not apply to a Party’s or its or any of its Affiliates’ exercise of rights and performance of obligations under and in accordance with this Agreement, including under the Co-Commercialization Agreement, if any.
(b) The Parties hereby acknowledge and agree that the restrictions set forth in Section 14.1 will not apply to any activities intended by each Party or any of its Affiliates to ensure its compliance with Section 14.1 (e.g., counter-screening).
2Exceptions. The obligations in Section 9.1 shall not apply with respect to any portion of Confidential Information that the receiving Party can demonstrate by contemporaneous tangible records or other competent proof:
(a) was already known to the receiving Party (or its Affiliates), other than under an obligation of confidentiality, either (i) at the time of disclosure by the disclosing Party, or (ii) if applicable, at the time that it was generated hereunder, whichever ((i) or (ii)) is earlier;
(b) was generally available to the public or otherwise part of the public domain either (i) at the time of its disclosure to the receiving Party, or (ii) if applicable, at the time that it was generated hereunder, whichever ((i) or (ii)) is earlier;
(c) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of this Agreement;
(d) was disclosed to the receiving Party (or its Affiliates), other than under an obligation of confidentiality, by a Third Party who had no obligation to the Party owning or Controlling the information not to disclose such information to others; or Clinical Trial Collaboration Agreement_Nektar_BMS_September 2016 ***Text Omitted and Filed Separately with the Securities and Exchange Commission. Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2
(e) was independently discovered or developed by the receiving Party (or its Affiliates) without the use of or reference to the Confidential Information belonging to the disclosing Party.
