Common use of Evaluation Material Clause in Contracts

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives before, on or after the date hereof, whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (a) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (b) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (c) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be bound by a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunder.

Evaluation Material. The term “Evaluation Material” shall mean (a) any and all information (whether in written, verbal, graphic, electronic, or other form) that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and proprietary to regardless of the Companymanner in which it is delivered, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacturedisclosed or furnished, and trade secretsshall include any and all such information relating, and (b) all information relating directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows flows, prospects or prospects other business information of the Company (whether prepared by the Company, its advisors Representatives or otherwise), historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to together with any and all information which you or to your Representatives beforeotherwise learn or obtain, on through observation or after the date hereofthrough analysis of such information, whether data or not marked or designated as confidential or proprietary. Evaluation Material knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto, as well as, for the avoidance of doubt, any information delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding any other provision hereofthe foregoing, the term “Evaluation Material Material” shall not include any information which you can conclusively demonstrate through written records that (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (bii) was within your or any of your Representative’s possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided that so long as the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (ciii) becomes available to you or any of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that so long as such source is not known by you or your applicable Representative to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information information; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (div) has can be reasonably demonstrated by you or your Representatives to have been or is subsequently independently developed by you or any of your Representatives without violating any obligations hereunderuse of, reliance on or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) anything that is confidential and proprietary to the Company, including, including but not limited to, productsproduct specifications, product plansdata, know-how, designs, inventions and ideas, research and development, price lists, market studies, reportsbusiness plans, documentationsoftware (including source code and object code), drawingssystems, computer programsstructures and architectures (and related improvements, customer and supplier listsdevices, price listsdiscoveries, designs, creations, models, business materials, work-in-progressconcepts, methods of manufactureand information), and any other information that is a trade secretssecret, and (b) all information relating to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives Representatives, before, on or after the date hereof, hereof whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement(unless required by law), (bii) was within your possession and possession, or developed by you or your Representatives, prior to it being furnished to you by or on behalf of the Company pursuant heretoCompany, provided that you have no reasonable basis for concluding that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you or your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that you have no reasonable basis for concluding that such source is not known by you to be bound by a confidentiality agreement or other contractual, legal, legal or fiduciary obligation of confidentiality with respect to such information or (d) has been or is subsequently independently developed by information. For the avoidance of doubt, Evaluation Material shall include anything confidential and proprietary of the Company that was provided to you or your Representatives without violating any obligations hereunderrepresentatives prior to the date hereof.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company and/or its subsidiaries, affiliates and divisions, or the business, products, strategies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company and/or its subsidiaries, affiliates and divisions (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Bally Total Fitness Holding Corporation August 28, 2006 Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that you did not know or have reason to believe that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that you do not know that the source of such source information is not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or information, (div) has been or is subsequently independently developed by you or your Representatives employees without violating the benefit of any obligations hereunderEvaluation Material or (v) is generally made available to third parties by the Company without restriction on disclosure.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (all information, data, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether in written, verbal, graphicoral, electronic, visual or other form) that is confidential and proprietary otherwise, concerning or related to the Company, includingany of its subsidiaries or joint ventures, but not limited toor any of the businesses, properties, assets, operations, products, product plansservices, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating to the Company or the business, products, marketsliabilities, condition (financial or otherotherwise), operationsemployees, assets, liabilities, prospects and/or results of operations, cash flows or prospects operations of any of the Company foregoing (whether prepared by the Company, any of its advisors Representatives (as defined below) or otherwise), historical ) that previously has been or projected financial statements, budgets, sales, capital spending budgets, plans, may be furnished to you or identities any of key personnel, in each case disclosed or furnished your Representatives by or on behalf of the Company to you Company, the Special Committee or to any of their respective Representatives, either directly or indirectly through one of your Representatives beforeApproved Financing Sources (as defined below) (collectively, on or after the date hereof“Information”), whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include well as all notes, analyses, compilations, summaries, extracts, studies, forecasts, interpretations or other documents materials prepared by you or any of your Representatives Representatives, but only to the extent that the foregoing contain, reflect or are based uponupon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, in whole or in partwithout limitation, the information furnished to you status or your Representatives pursuant heretoterms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. Notwithstanding any other provision hereof, the The term “Evaluation Material shall Material” does not include information which you can conclusively demonstrate through written records or any portion thereof that (ai) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreementagreement or any other obligation of confidentiality to the Company), (bii) was within your possession and developed by you without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality toCompany, the Company Special Committee or any of their respective Representatives (other party with respect to such informationthan in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any its Representatives (other than in your capacity as an officer or director of its Representativesthe Company, provided in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement or other contractual, legal, otherwise) to the Company or fiduciary obligation any of confidentiality with respect to such information or its Representatives (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderincluding the Special Committee).

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the its business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives in connection with a Possible Transaction, whether, before, on or after the date hereofhereof and regardless of the manner in which it is delivered, whether disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learns or obtains, to the extent a result of observation or analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect to the extent they contain or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided that the source of such information was not known by you or your representatives to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (iii) was independently developed by you or your Representatives without violating any of your obligations hereunder, or (civ) becomes available to you or your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company and its subsidiaries or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows flows, projections (financial or other), future plans or prospects of the Company and its subsidiaries (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked or designated as confidential or proprietary. Evaluation Material furnished, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (bii) was within your or your Representatives’ possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided or becomes available to you or your Representatives on a non-confidential basis from a source other than Company or any of its Representatives; provided, that you or your Representatives had no reasonable knowledge that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (c) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be bound by a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information or (diii) has been or is subsequently independently developed by you or your Representatives or employees without violating any obligations hereunderreference to or use of any Evaluation Material. Notwithstanding anything herein to the contrary, the restrictions on use of Evaluation Material set forth herein shall not limit your use of any such Evaluation Materials to the extent contemplated by the Amended and Restated Strategic Collaboration Agreement, dated February 4, 2020, between you and Company.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records establish (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided that you had no reasonable basis for concluding that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe that the source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company with respect to such information or (div) has been is independently acquired or is subsequently independently developed by you or your Representatives employees or consultants without violating the benefit of any obligations hereunderEvaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company and/or its subsidiaries and affiliates, or the business, products, strategies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company and/or its subsidiaries and affiliates (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally publicly available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company or its Representatives pursuant hereto, provided that you had no reasonable basis for concluding that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that you do not know or have reason to believe that the source of such source information is not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the business, products, product candidates, clinical and product development plans, contractual arrangements, know-how, trade secrets, compositions, formulations, compounds, plans, designs, processes, formulas, manufacturing, discoveries, inventions and ideas, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, presentations, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect contain or are based uponreflect, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided that the source of such information was not known by you to be or you had no reasonable basis for concluding that the source of such information was bound by a confidentiality agreement with, or other contractual, legal, contractual or fiduciary legal obligation of confidentiality to, to the Company or any other party with respect to such information, or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you to be or you do not know or have reason to believe that the source is bound by a confidentiality agreement with, or other contractual, legal, contractual or fiduciary legal obligation of confidentiality to, the Company with respect to such information or (div) has been or is subsequently was independently developed generated by you or your Representatives without violating any obligations hereunderreference to Evaluation Material or (v) orally disclosed information unless reduced to writing and such writing being received by you within ninety days after oral disclosure.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows flows, prospects, suppliers, customers, trade secrets or prospects intellectual property of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided you did not know and had no reasonable basis for concluding that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe that the source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (bii) was within your or your Representatives’ possession and developed by you prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that the source of such information was not known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you or your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such source is not known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information information, or (div) has been or is subsequently independently developed by or for you or your Representatives without violating any obligations hereunderuse of or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or As of February 17, 2006 Page 2 your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that you had no reasonable basis (after due inquiry) for concluding that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe (after due inquiry) that the source is not known by you to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.