OF CAPITAL STOCK OR OTHER
EQUITY INTERESTS OF SUCH SURVIVING CORPORATION OR ENTITY OUTSTANDING IMMEDIATELY
AFTER SUCH MERGER OR CONSOLIDATION.
(C)
"COMMERCIALIZE" SHALL MEAN TO SELL, OFFER
FOR SALE, IMPORT, EXPORT, TRANSPORT, REGISTER, DISTRIBUTE, PROMOTE, AND MARKET,
TOGETHER WITH OTHER ACTIVITIES TYPICALLY ASSOCIATED WITH COMMERCIALIZATION OF A
MEDICAL PRODUCT.
(D)
"COMMERCIALLY REASONABLE EFFORTS" MEANS
TIMELY APPLICATION OF EFFORTS AND RESOURCES, CONSISTENT WITH THE EXERCISE OF
PRUDENT BUSINESS JUDGMENT BY A COMPANY WITH SIMILAR FINANCIAL RESOURCES WHICH
INTENDS TO EXPLOIT A MEDICAL PRODUCT OF SIMILAR MARKET POTENTIAL WITH A VIEW TO
MAKING A PROFIT, TAKING INTO ACCOUNT SUCH MATTERS AS PRODUCT EFFICACY AND
SAFETY, SIZE OF MARKET, ANTICIPATED LABELING, COMPETITIVENESS OF ALTERNATIVE
PRODUCTS, STRENGTH OF PATENT OR TRADE SECRET PROTECTION, LIKELIHOOD OF OBTAINING
REGULATORY APPROVAL, AND COMMERCIALLY APPROPRIATE PRIORITIZATION WITH RESPECT TO
OTHER COMPANY PROJECTS AND PRODUCTS.
(E)
"COMPLAINT" SHALL MEAN ANY WRITTEN,
ELECTRONIC, OR ORAL COMMUNICATION THAT ALLEGES DEFICIENCIES RELATED TO THE
IDENTITY, QUALITY, DURABILITY, RELIABILITY, SAFETY, EFFECTIVENESS, OR
PERFORMANCE OF A PRODUCT OR DEVICE AFTER IT IS RELEASED FOR DISTRIBUTION IN THE
MARKETPLACE.
(F)
THE TERM "CONCEIVED AND REDUCED TO
PRACTICE" (OR ANY OTHER FORM THEREOF, E.G., "CONCEPTION AND REDUCTION TO
PRACTICE") SHALL MEAN EITHER CONCEPTION AND ACTUAL REDUCTION TO PRACTICE OF THE
RELEVANT INVENTION OR, IN THE CASE OF CONCEPTION COUPLED WITH CONSTRUCTIVE
REDUCTION TO PRACTICE, THAT THE CONSTRUCTIVE REDUCTION TO PRACTICE OF THE
INVENTION MUST BE SUCH AS WOULD ENABLE A PERSON SKILLED IN THE RELEVANT ART TO
ACTUALLY REDUCE THE CONCEIVED INVENTION TO PRACTICE WITHOUT UNDUE
EXPERIMENTATION, OR RESEARCH, OR EXERCISE OF INVENTIVE SKILL.
(G)
"CONFIDENTIAL INFORMATION" SHALL MEAN ALL
IDEAS AND INFORMATION OF ANY KIND THAT ARE HELD IN CONFIDENCE BY ONE PERSON AND
TRANSFERRED, DISCLOSED, OR MADE AVAILABLE BY SUCH PERSON TO A RECEIVING PERSON
AND ARE IDENTIFIED AT THE TIME OF DISCLOSURE AS BEING PROPRIETARY OR
CONFIDENTIAL, OR WOULD REASONABLY BE REGARDED AS PROPRIETARY OR CONFIDENTIAL BY
A REASONABLE BUSINESS PERSON IN LIKE CIRCUMSTANCES. THE OBLIGATIONS IN THIS
AGREEMENT WITH RESPECT TO CONFIDENTIAL INFORMATION SHALL NOT APPLY TO ANY
PORTION OF THE CONFIDENTIAL INFORMATION THAT THE RECEIVING PERSON CAN
DEMONSTRATE BY LEGALLY SUFFICIENT EVIDENCE (I) NOW OR HEREAFTER, THROUGH NO ACT
OR FAILURE TO ACT ON THE PART OF THE RECEIVING PERSON, IS OR BECOMES PUBLIC;
(II) IS KNOWN TO THE RECEIVING PERSON OR ONE OF ITS AFFILIATES AT THE TIME SUCH
PERSON RECEIVES SUCH CONFIDENTIAL INFORMATION FROM THE DISCLOSING PERSON;
(III) IS HEREAFTER FURNISHED TO THE RECEIVING PERSON BY AN UNRELATED THIRD
PERSON WITHOUT VIOLATING ANY AGREEMENT WITH THE DISCLOSING PERSON; OR (IV) IS
2
INDEPENDENTLY DEVELOPED BY THE RECEIVING PERSON OR ONE OF ITS AFFILIATES WITHOUT
USE OF ANY CONFIDENTIAL INFORMATION RECEIVED FROM THE OTHER PERSON.
(H)
"CONTROL" OR "CONTROLLED" SHALL MEAN THE
ABILITY OF A PERSON TO GRANT A LICENSE OR SUBLICENSE UNDER INTELLECTUAL
PROPERTY, OTHER THAN AS A RESULT OF THIS AGREEMENT AND WITHOUT VIOLATING THE
TERMS OF ANY AGREEMENT OR OTHER ARRANGEMENT WITH ANY THIRD PARTY.
(I)
"CRITICAL DESIGN REVIEW" SHALL MEAN THE
SPECIFIC STAGE OF DEVELOPMENT