RESPECT TO ANY PERSON, THE
OCCURRENCE OF (I) ANY CONSOLIDATION OR MERGER OF SUCH PERSON WITH OR INTO ANY
OTHER PERSON, OR ANY OTHER CORPORATE REORGANIZATION OR TRANSACTION (INCLUDING
THE ACQUISITION OF CAPITAL STOCK OF SUCH PERSON (OR ANY RIGHTS TO ACQUIRE, OR
SECURITIES CONVERTIBLE INTO OR EXCHANGEABLE FOR, ANY SUCH CAPITAL STOCK)),
WHETHER OR NOT SUCH PERSON IS A PARTY THERETO, IN WHICH THE STOCKHOLDERS OR
EQUITY-HOLDERS OF SUCH PERSON OR OTHER PERSONS CONTROLLING SUCH PERSON
IMMEDIATELY PRIOR TO SUCH CONSOLIDATION, MERGER, REORGANIZATION OR TRANSACTION,
OWN CAPITAL STOCK EITHER (A) REPRESENTING DIRECTLY, OR INDIRECTLY THROUGH ONE OR
MORE ENTITIES, LESS THAN FIFTY PERCENT (50%) OF THE ECONOMIC INTERESTS IN OR
VOTING POWER OF SUCH PERSON OR OTHER SURVIVING ENTITY IMMEDIATELY AFTER SUCH
2
CONSOLIDATION, MERGER, REORGANIZATION OR TRANSACTION OR (B) THAT DOES NOT
DIRECTLY, OR INDIRECTLY THROUGH ONE OR MORE ENTITIES, HAVE THE POWER TO ELECT A
MAJORITY OF THE ENTIRE BOARD OF DIRECTORS OR EQUIVALENT GOVERNING BODY OF SUCH
PERSON OR OTHER SURVIVING ENTITY IMMEDIATELY AFTER SUCH CONSOLIDATION, MERGER,
REORGANIZATION OR TRANSACTION OR (II) A SALE, LEASE, LICENSE OR OTHER
DISPOSITION OF ALL OR A MATERIAL PORTION OF THE ASSETS OF SUCH PERSON.
(M)
"CLAIM" MEANS ANY CLAIM, LAWSUIT, DEMAND, AUDIT, INVESTIGATION,
CHARGE, SUIT, HEARING, NOTICE OF A VIOLATION, LITIGATION, ACTION, PROCEEDING,
ORDER, JUDGMENT, GRIEVANCE, OR ARBITRATION, WHETHER CIVIL, CRIMINAL,
ADMINISTRATIVE OR OTHERWISE, WHETHER AT LAW OR IN EQUITY, OR ANY INQUIRY LIKELY
TO RESULT IN ANY OF THE FOREGOING.
(N)
"CODE" MEANS THE INTERNAL REVENUE CODE OF 1986, AS AMENDED FROM
TIME TO TIME.
(O)
"COMMON STOCK" MEANS THE COMMON STOCK OF IBIS, PAR VALUE $0.001
PER SHARE.
(P)
"CONFIDENTIAL INFORMATION" MEANS ALL INFORMATION AND ANY TANGIBLE
EMBODIMENTS THEREOF PROVIDED BY OR ON BEHALF OF THE DISCLOSING PARTY TO THE
RECEIVING PARTY OR TO THE RECEIVING PARTY'S REPRESENTATIVES EITHER IN CONNECTION
WITH THE DISCUSSIONS AND NEGOTIATIONS PERTAINING TO THE TRANSACTION DOCUMENTS OR
IN THE COURSE OF 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,