PERFORMING THE TRANSACTION DOCUMENTS, INCLUDING WITHOUT
LIMITATION: KNOW-HOW; DATA; KNOWLEDGE; PRACTICES; PROCESSES; RESEARCH AND
DEVELOPMENT PLANS; ENGINEERING DESIGNS AND DRAWINGS; RESEARCH DATA;
MANUFACTURING PROCESSES AND TECHNIQUES; SCIENTIFIC, MANUFACTURING, MARKETING AND
BUSINESS PLANS; AND FINANCIAL AND PERSONNEL MATTERS RELATING TO THE DISCLOSING
PARTY OR TO ITS PRESENT OR FUTURE PRODUCTS, SALES, SUPPLIERS, CUSTOMERS,
EMPLOYEES, CONSULTANTS, INDEPENDENT CONTRACTORS, INVESTORS OR BUSINESS;
REGARDLESS OF WHETHER ANY OF THE FOREGOING ARE MARKED "CONFIDENTIAL" OR
"PROPRIETARY" OR COMMUNICATED TO THE OTHER BY THE DISCLOSING PARTY IN ORAL,
WRITTEN, GRAPHIC OR ELECTRONIC FORM. NOTWITHSTANDING THE FOREGOING, INFORMATION
OF A PARTY WILL NOT BE DEEMED CONFIDENTIAL INFORMATION TO THE EXTENT THAT THE
RECEIVING PARTY CAN SHOW BY COMPETENT PROOF THAT SUCH INFORMATION:
(I)
IS OR BECOMES GENERALLY AVAILABLE TO THE PUBLIC OTHER THAN AS A
RESULT OF AN UNAUTHORIZED DISCLOSURE BY THE RECEIVING PARTY OR ITS
REPRESENTATIVES;
(II)
WAS AVAILABLE TO THE RECEIVING PARTY OR ITS REPRESENTATIVES ON A
NON-CONFIDENTIAL BASIS PRIOR TO ITS DISCLOSURE BY THE DISCLOSING PARTY OR ITS
REPRESENTATIVES;
(III)
IS OR BECOMES AVAILABLE TO THE RECEIVING PARTY OR ITS
REPRESENTATIVES FROM A PERSON, OTHER THAN THE DISCLOSING PARTY OR ITS
REPRESENTATIVES,
3
WHO IS NOT BOUND BY A CONFIDENTIALITY OBLIGATION TO THE DISCLOSING PARTY OR ITS
REPRESENTATIVES; OR
(IV)
IS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY OR ITS
REPRESENTATIVES WITHOUT REFERENCE TO OR USE OF ANY CONFIDENTIAL INFORMATION OF
THE DISCLOSING PARTY.
(R)
"CONTRACT" MEANS ANY CONTRACT, LEASE, DEED, MORTGAGE, LICENSE,
INSTRUMENT, NOTE, COMMITMENT, UNDERTAKING, UNDERSTANDING, INDENTURE, JOINT
VENTURE, PURCHASE ORDER, SERVICE ORDER AND ALL OTHER AGREEMENTS AND
ARRANGEMENTS, WHETHER ORAL OR WRITTEN.
(S)
"CONTRIBUTION AGREEMENT" MEANS THE CONTRIBUTION AGREEMENT, DATED
AS OF JULY 31, 2007, BY AND BETWEEN ISIS AND IBIS.
(T)
"CORPORATE SERVICES AGREEMENT" MEANS THAT CERTAIN CORPORATE
SERVICES AGREEMENT, DATED AS OF JULY 31, 2007, BY AND BETWEEN ISIS AND IBIS.
(U)
[***]
(V)
"DIVISION" MEANS THE IBIS BIOSCIENCES DIVISION OF ISIS.
(W)
"EARNOUT THRESHOLD" MEANS $140 MILLION MINUS ALL COMMERCIAL REVENUE
FOR THE PERIOD BEGINNING ON [***], AS SET FORTH ON EXHIBIT B, WHICH HAS BEEN
PREPARED IN ACCORDANCE WITH GAAP AND ISIS' INTERNAL CONTROLS AND PROCEDURES FOR
FINANCIAL REPORTING AND DELIVERED PURSUANT TO SECTION 8.17.
(X)
"EMPLOYEE PENSION BENEFIT PLAN" HAS THE MEANING SET FORTH IN
SECTION 3(2) OF ERISA.
(Y)
"EMPLOYEE WELFARE BENEFIT PLAN" HAS THE MEANING SET FORTH IN
SECTION 3(1) OF ERISA.
(Z)
"ENCUMBRANCE" MEANS ANY MORTGAGE, COVENANT, HYPOTHECATION,
CONDITION, CLAIM, EASEMENT, ENCROACHMENT, RIGHT OF WAY, RESTRICTION, OPTION,
LIEN (STATUTORY OR OTHERWISE), PLEDGE, CHARGE, LICENSE, SECURITY INTEREST OR
ENCUMBRANCE OF ANY NATURE WHATSOEVER.
(AA)
"ENVIRONMENTAL LAWS" MEANS ANY FEDERAL, STATE, LOCAL OR FOREIGN
STATUTES, ORDINANCES, CODES, TREATIES, OR OTHER LAWS (INCLUDING, WITHOUT
LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION, AND
LIABILITY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, THE CLEAN AIR ACT,
THE CLEAN WATER ACT, THE TOXIC SUBSTANCES CONTROL ACT, THE OIL POLLUTION
PREVENTION ACT, THE FEDERAL INSECTICIDE, FUNGICIDE, & RODENTICIDE ACT, THE SAFE
DRINKING WATER ACT, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, THE SOLID WASTE
DISPOSAL ACT, THE EMERGENCY PLANNING AND COMMUNITY RIGHT-TO-KNOW ACT,