WHERE A PARTY CANNOT, AS A MATTER OF LAW,
HAVE SUCH OWNERSHIP INTEREST, CONTROL SHALL MEAN THE MAXIMUM OWNERSHIP INTEREST
PERMITTED BY LAW.
"CONTROLLED AFFILIATE" OF A PARTY MEANS AN AFFILIATE THAT IS
CONTROLLED BY SUCH PARTY, DIRECTLY OR INDIRECTLY.
FOR CLARITY, ANY AFFILIATE OF
CYBERHEART THAT IS NOT IN EXISTENCE AS A LEGAL ENTITY AS OF ONE (1) YEAR BEFORE
THE EFFECTIVE DATE OF
2
ANY CHANGE OF CONTROL TRANSACTION OF CYBERHEART SHALL BE EQUALLY CONSIDERED AN
AFFILIATE AND CONTROLLED AFFILIATE OF CYBERHEART REGARDLESS OF WHETHER IT IS
CONTROLLED BY CYBERHEART, DIRECTLY OR INDIRECTLY.
1.7
"APPLICABLE LAW" MEANS ALL LAWS, ORDINANCES, RULES AND REGULATIONS
APPLICABLE TO THE DELIVERABLES, THE DEVELOPMENT SERVICES, OR THIS AGREEMENT, OR
OTHER ACTIVITIES UNDER OR PURSUANT TO THIS AGREEMENT, INCLUDING WITHOUT
LIMITATION (A) ALL APPLICABLE FEDERAL, STATE, PROVINCIAL, AND LOCAL LAWS AND
REGULATIONS, (B) REGULATIONS AND GUIDELINES OF THE U.S. FOOD AND DRUG
ADMINISTRATION ("FDA") AND OTHER REGULATORY AUTHORITIES AND THE INTERNATIONAL
CONFERENCE ON HARMONIZATION ("ICH") GUIDELINES AND (C) CURRENT GOOD
MANUFACTURING PRACTICES AND OTHER REGULATIONS PROMULGATED BY THE FDA, ICH AND
OTHER REGULATORY AUTHORITIES.
1.8
"CHANGE OF CONTROL" MEANS (I) THE SALE OF ALL OR SUBSTANTIALLY ALL
OF THE ASSETS OF A PARTY OR (II) THE ACQUISITION OF A PARTY BY ANOTHER ENTITY IN
WHICH SUCH OTHER ENTITY OBTAINS CONTROL OF SUCH PARTY BY MEANS OF MERGER OR
CONSOLIDATION RESULTING IN THE EXCHANGE OF THE OUTSTANDING SHARES OF SUCH PARTY
FOR SECURITIES OR OTHER CONSIDERATION ISSUED, OR CAUSED TO BE ISSUED, BY THE
ACQUIRING ENTITY OR ITS SUBSIDIARIES (IN EACH CASE PROVIDED THAT THE
CONSIDERATION TO BE RECEIVED BY SUCH PARTY'S STOCKHOLDERS, OR OTHER EQUITY
HOLDERS, CONSISTS SOLELY OF CASH AND/OR PUBLICLY TRADED SECURITIES), UNLESS THE
STOCKHOLDERS (OR OTHER EQUITY HOLDERS) OF SUCH PARTY, AS CONSTITUTED IMMEDIATELY
PRIOR TO SUCH TRANSACTION, HOLD IMMEDIATELY AFTER SUCH TRANSACTION A MAJORITY OF
THE VOTING POWER OF THE SURVIVING OR RESULTING ENTITY IN SUCH A TRANSACTION (OR
MAJORITY VOTING POWER IN AN ENTITY THAT CONTROLS (AS DEFINED IN SECTION 1.6) THE
SURVIVING OR RESULTING ENTITY).
FOR CLARITY, NO PUBLIC OFFERING OF STOCK OR
OTHER SECURITIES SHALL BE CONSIDERED A CHANGE OF CONTROL.
1.9
"CONFIDENTIAL INFORMATION" HAS THE MEANING ASSIGNED TO SUCH TERM
IN SECTION 14.1.
1.10
"CYBERHEART FIELD" MEANS ANY AND ALL NON-TUMOR APPLICATIONS
INVOLVING OR RELATING TO THE HEART, THE CORONARY ARTERIES (INCLUDING WITHOUT
LIMITATION THE EPICARDIAL CORONARY ARTERIES), THE CARDIAC VEINS, THE STRUCTURE
OR FUNCTION OF ANY OF THE FOREGOING, OR RELATED CONDITIONS, INCLUDING WITHOUT
LIMITATION ALL DISEASES AND CONDITIONS OF THE CONDUCTION SYSTEM, THE CORONARY,
ARTERIAL AND/OR VENOUS SYSTEMS, HEART VALVES OR CHAMBERS, WALL ANOMALIES
AFFECTION, EJECTION FRACTION AND/OR CONDUCTION.
1.11
"CYBERHEART IMPROVEMENT" MEANS (I) ANY IMPROVEMENT OF ANY
CYBERKNIFE SYSTEM OR CYBERHEART PRODUCT, OR OF ANY PORTION OF A CYBERKNIFE
SYSTEM OR CYBERHEART PRODUCT, THAT (A) IS NECESSARY OR USEFUL FOR THE
MANUFACTURE OR USE OF ANY CYBERHEART PRODUCT SOLELY IN THE CYBERHEART FIELD AND
(B) IS FIRST CONCEIVED OR CREATED BY OR ON BEHALF OF CYBERHEART OR ACCURAY,
EITHER SOLELY OR JOINTLY,