COMPETITIVE PRODUCTS IN
THE MARKET PLACE OR UNDER DEVELOPMENT, THE PROPRIETARY POSITION OF THE PRODUCT,
THE REGULATORY STRUCTURE INVOLVED, THE ANTICIPATED PROFITABILITY OF THE PRODUCT
(WITHOUT REGARD TO ANY AMOUNTS PAID OR PAYABLE WITH RESPECT TO LICENSED PRODUCTS
UNDER THIS AGREEMENT) AND OTHER RELEVANT FACTORS.
IT IS ALSO TO BE APPRECIATED
THAT A MAJOR GLOBAL PHARMACEUTICAL COMPANY DOES NOT ALWAYS SEEK TO MARKET
PRODUCTS IN EVERY COUNTRY OR SEEK REGULATORY APPROVAL FOR EVERY POTENTIAL
INDICATION, BUT THAT ROCHE SHALL UNDERTAKE TO COMMERCIALIZE LICENSED PRODUCTS IN
THE MAJOR MARKETS ABSENT A COMPELLING REASON NOT TO DO SO.
IT IS UNDERSTOOD
THAT SUCH PRODUCTS' POTENTIAL MAY CHANGE FROM TIME TO TIME BASED UPON CHANGING
SCIENTIFIC, BUSINESS AND MARKETING AND RETURN ON INVESTMENT CONSIDERATIONS.
AS
A RESULT, THE EXERCISE OF DILIGENCE BY ROCHE IS TO BE DETERMINED BY JUDGING
ROCHE'S COMMERCIALLY REASONABLE EFFORTS TAKEN AS A WHOLE.
1.9.
"CONFIDENTIAL INFORMATION" MEANS ALL PROPRIETARY KNOW-HOW OF A
PARTY WHICH ARE DISCLOSED (WHETHER IN WRITTEN, GRAPHIC, ORAL, ELECTRONIC OR
OTHER FORM) BY OR ON BEHALF OF SUCH PARTY TO ANOTHER PARTY PURSUANT TO THIS
AGREEMENT, INCLUDING: INFORMATION REGARDING A PARTY'S OR ITS LICENSOR'S
TECHNOLOGY, PRODUCTS, BUSINESS OR FINANCIAL STATUS, AND BIOLOGICAL OR CHEMICAL
SUBSTANCES, FORMULATIONS, TECHNIQUES, METHODOLOGY, EQUIPMENT, SOURCES OF SUPPLY,
PATENT POSITIONING, AND BUSINESS PLANS.
THE STATUS, PROSPECTS OR OBJECTIVES
REGARDING THE RESEARCH PROGRAM, COLLABORATION COMPOUNDS OR LICENSED PRODUCTS
SHALL BE DEEMED "CONFIDENTIAL INFORMATION" OF BOTH PARTIES.
ALL INFORMATION
DISCLOSED PRIOR TO THE EFFECTIVE DATE BY OR ON BEHALF OF EITHER PARTY UNDER, AND
SUBJECT TO, ANY OF THE CONFIDENTIALITY AGREEMENTS BETWEEN SYNTA AND ROCHE NUTLEY
DATED [***], AND [***] OR THE CONFIDENTIALITY AGREEMENT BETWEEN SYNTA AND ROCHE
PALO ALTO LLC, AN AFFILIATE OF ROCHE, DATED [***] (TOGETHER, THE
"CONFIDENTIALITY AGREEMENTS") SHALL BE DEEMED "CONFIDENTIAL INFORMATION" OF THE
DISCLOSING PARTY HEREUNDER.
1.10.
"CONTRACT YEAR" MEANS EACH SUCCESSIVE TWELVE (12) MONTH PERIOD
COMMENCING ON JANUARY 1, 2009 AND ON EACH ANNIVERSARY THEREOF.
1.11.
"CONTROL" OR "CONTROLLED" MEANS, WITH RESPECT TO ANY PATENT RIGHTS
OR KNOW-HOW AND WITH RESPECT TO ANY PERSON, POSSESSION (WHETHER BY OWNERSHIP OR
LICENSE, OTHER THAN A LICENSE GRANTED PURSUANT TO THIS AGREEMENT) BY SUCH PERSON
OF THE ABILITY TO GRANT THE LICENSES OR SUBLICENSES AS PROVIDED FOR HEREIN
WITHOUT VIOLATING THE TERMS OF ANY AGREEMENT OR OTHER ARRANGEMENT WITH ANY THIRD
PARTY.
1.12.
"CO-PROMOTED PRODUCT" MEANS A LICENSED PRODUCT WITH RESPECT TO
WHICH SYNTA HAS EXERCISED ITS CO-PROMOTION OPTION PURSUANT TO SECTION 5.3.
1.13.
"CO-PROMOTION" MEANS THE JOINT MARKETING AND PROMOTION (INCLUDING
DETAILING) OF LICENSED PRODUCTS IN THE UNITED STATES AS FURTHER DESCRIBED IN
ARTICLE V.
PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO THE COMPANY'S APPLICATION REQUESTING
CONFIDENTIAL TREATMENT UNDER RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934,
AS AMENDED.
3
1.14.
"COVER", "COVERING" OR "COVERED" MEANS, WITH RESPECT TO A PRODUCT,
COMPOSITION, TECHNOLOGY, PROCESS OR METHOD THAT, IN THE ABSENCE OF OWNERSHIP OF
OR A LICENSE GRANTED UNDER A VALID CLAIM, THE MANUFACTURE, USE, OFFER FOR