THAT MAY BE IN EFFECT FROM TIME TO TIME DURING THE TERM AND
APPLICABLE TO A PARTICULAR ACTIVITY HEREUNDER.
1.5
"APPLICABLE MEASUREMENT PERIOD" MEANS THE
FOUR-MONTH PERIOD COMMENCING ON THE FIRST DAY OF CALENDAR MONTH 21 (MAY 2010)
AND CONTINUING THROUGH THE LAST DAY OF CALENDAR MONTH 24 (AUGUST 2010).
1.6
"APPLICABLE PRODUCT PAYMENT" MEANS $[***]
FOR EACH PST® GENETIC RISK ASSESSMENT TEST.
1.7
"APPROVED PATIENT" MEANS A PATIENT WHO HAS
COMPLETED AN INFORMED CONSENT, SUBMITTED AN ADDITIONAL SAMPLE TO ILI VIA ORAL
DNA, AND WHOSE ADDITIONAL TESTING SERVICES ARE DERIVED SOLELY FROM THE
ADDITIONAL SAMPLE SENT FROM ORAL DNA.
1.8
"BUSINESS DAY" MEANS A DAY ON WHICH BANKING
INSTITUTIONS IN NEW YORK, NEW YORK ARE OPEN FOR BUSINESS.
1.9
"CALENDAR MONTH" MEANS THE PERIOD BEGINNING
ON THE EFFECTIVE DATE AND ENDING ON THE LAST DAY OF THE CALENDAR MONTH IN WHICH
THE EFFECTIVE DATE FALLS, AND THEREAFTER EACH SUCCESSIVE CALENDAR MONTH
THEREAFTER.
FOR PURPOSES OF CLARITY, THE FIRST CALENDAR MONTH SHALL BE REFERRED
TO AS "CALENDAR MONTH 1" (AUGUST 2008) AND EACH SUCCESSIVE CALENDAR MONTH SHALL
BE SEQUENTIALLY NUMBERED AS "CALENDAR MONTH 2", "CALENDAR MONTH 3", ETC.
1.10
"CALENDAR QUARTER" MEANS THE PERIOD BEGINNING ON
THE EFFECTIVE DATE AND ENDING ON THE LAST DAY OF THE CALENDAR QUARTER IN WHICH
THE EFFECTIVE DATE FALLS, AND THEREAFTER EACH SUCCESSIVE PERIOD OF THREE
(3) CONSECUTIVE CALENDAR MONTHS ENDING ON MARCH 31, JUNE 30, SEPTEMBER 30 OR
DECEMBER 31.
1.11
"CALENDAR YEAR" MEANS EACH SUCCESSIVE PERIOD OF
TWELVE (12) MONTHS COMMENCING ON JANUARY 1 AND ENDING ON DECEMBER 31.
1.12
"COMMERCIALLY REASONABLE EFFORTS" MEANS, WITH
RESPECT TO ORAL DNA, THE EFFORTS AND RESOURCES CUSTOMARILY USED BY
SIMILARLY-SIZED COMPANIES WITH RESPECT TO A PRODUCT OR POTENTIAL PRODUCT OF
SIMILAR NATURE AT A SIMILAR STAGE IN ITS DEVELOPMENT OR PRODUCT LIFE AND OF
SIMILAR MARKET POTENTIAL, IN VIEW OF CONDITIONS PREVAILING AT THE TIME, AND
EVALUATED TAKING INTO ACCOUNT ALL RELEVANT FACTORS, INCLUDING THE
COMPETITIVENESS OF ALTERNATIVE PRODUCTS THAT ARE IN THE MARKETPLACE OR UNDER
DEVELOPMENT, THE PATENT AND OTHER PROPRIETARY POSITION OF THE PRODUCT, THE
PROFITABILITY OF THE PRODUCT AND OTHER TECHNICAL, LEGAL, MARKETING AND
COMPETITIVE FACTORS.
1.13
"CONFIDENTIAL INFORMATION" MEANS (A) WITH RESPECT
TO ILI, ALL TANGIBLE EMBODIMENTS OF LICENSED TECHNOLOGY AND LICENSED PATENTS;
AND (B) WITH RESPECT TO EACH PARTY, ALL INFORMATION AND TECHNOLOGY DISCLOSED OR
PROVIDED BY OR ON BEHALF OF SUCH PARTY (THE "DISCLOSING PARTY") TO THE OTHER
PARTY (THE "RECEIVING PARTY") OR TO ANY OF THE RECEIVING PARTY'S EMPLOYEES,
CONSULTANTS, AFFILIATES OR SUBLICENSEES PURSUANT TO OR IN CONNECTION WITH THIS
AGREEMENT; PROVIDED, THAT, NONE OF THE FOREGOING SHALL BE CONFIDENTIAL
INFORMATION IF:
(I) AS OF
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.
2
THE DATE OF DISCLOSURE, IT IS KNOWN TO THE RECEIVING PARTY OR ITS AFFILIATES AS
DEMONSTRATED BY CONTEMPORANEOUS WRITTEN DOCUMENTATION, OTHER THAN BY VIRTUE