Excluded Information. “Confidential Information” shall not include information which is or becomes publicly available without breach of # this Agreement, # any other agreement or instrument to which the Company is a party or a beneficiary or # any duty owed to the Company by the Consultant or any third party; provided, however, that the Consultant hereby acknowledges and agrees that if the Consultant shall seek to disclose, divulge, reveal, report, publish, transfer or use any Confidential Information to any third party, the Consultant shall bear the burden of proving that any such information shall have become publicly available without any such breach. Disclosure of Confidential Information shall not be prohibited if such disclosure is directly pursuant to a valid and existing order of a court or other governmental body or agency; provided, however, that # the Consultant shall first have given prompt notice to the Company of any such possible or prospective order (or proceeding pursuant to which any such order may result) and # the Company shall have been afforded a reasonable opportunity to prevent or limit any such disclosure.

Excluded Information. Confidential Information does not include any information that: # was generally available to the public at the time it was disclosed to Consultant; # became generally available to the public subsequent to disclosure to Consultant, other than by Consultant’s breach of this Agreement; # was in Consultant’s possession, as evidenced by its written records, free of any obligation of confidence at the time it was disclosed to Consultant; # was rightfully communicated to Consultant free of any obligation of confidence subsequent to the time it was disclosed to Consultant; or # was developed by Consultant independently of and without reference to any information FivePrime communicated to Consultant.

Excluded Information. Notwithstanding any provision herein to the contrary, the requirements of this Article XII shall not apply to any information of either Party which:

Excluded Assets. Notwithstanding any other provision of this Agreement to the contrary, the Assets to be conveyed and assigned under this Agreement do not include the Excluded Assets, all of which are reserved by Seller.

any Intellectual Property to the extent that the attachment of the security interest of this Agreement thereto, or any assignment thereof, would result in the forfeiture, cancellation, invalidation, unenforceability, or other loss of the Grantors’ rights in such property including, without limitation, any License pursuant to which Grantor is licensee under terms which prohibit the granting of a security interest or under which granting such an interest would give rise to a breach or default by Grantor, and any Trademark applications filed in the USPTO on the basis of such Grantor’s “intent-to-use” such Trademark, unless and until acceptable evidence of use of such Trademark has been filed with and accepted by the USPTO pursuant to Section 1(c) or Section 1(d) of the Lanham Act (15 U.S.C. § 1051, et seq.), to the extent that granting a lien in such Trademark application prior to such filing would adversely affect the enforceability, validity, or other rights in such Trademark application;

Excluded Claims. Notwithstanding the foregoing, the following are not included in the Released Claims (the “Excluded Claims”): # any rights or claims for indemnification you may have pursuant to any written indemnification agreement with the Company to which you are a party or under applicable law; # any rights which are not waivable as a matter of law; and # any claims for breach of this Agreement. You hereby represent and warrant that, other than the Excluded Claims, you are not aware of any claims you have or might have against any of the Released Parties that are not included in the Released Claims. You understand that nothing in this Agreement limits your ability to file a charge or complaint with the Equal Employment Opportunity Commission, the Department of Labor, the National Labor Relations Board, the Occupational Safety and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”). While this Agreement does not limit your right to receive an award for information provided to the Securities and Exchange Commission, you understand and agree that, to maximum extent permitted by law, you are otherwise waiving any and all rights you may have to individual relief based on any claims that you have released and any rights you have waived by signing this Agreement.

Excluded Subsidiaries. Notwithstanding the provisions of Section 7.8(a), no Excluded Subsidiary shall be required to become a Guarantor hereunder so long as such Subsidiary is in compliance with Section 8.14.

Excluded Property. Notwithstanding anything to the contrary set forth in Sections 1(a)-(e) above, none of # any and all fixtures, personal property or intellectual property or other assets owned by or proprietary to # the lessor under any equipment leases, # the supplier, vendor, licensor or other party under any Contracts, or # any

Excluded Theatres. In [Section 4.13(a)] of the ESA, the words “calculation of Theatre Access Fees” are hereby deleted and replaced with the following: “calculation of Theatre Access Fees, Post-Showtime Theatre Access Fees, Trailer Pod Fees, or ​”.

Excluded Claim. As used in Section 12.3 (Binding Arbitration), the term “Excluded Claim” will mean a dispute, controversy or claim that concerns the scope, validity, enforceability, inventorship or infringement of an Intellectual Property Right. Any Excluded Claim will be submitted to a court of competent jurisdiction.