FORTH IN
SECTION 9.1.3.
1.4
"ACCURAY PATENTS" MEANS (I) THE PATENTS SET FORTH IN EXHIBIT B;
(II) ALL PATENTS TO WHICH THE PATENTS IN EXHIBIT B CLAIM PRIORITY; (III) ALL
PATENTS CLAIMING PRIORITY TO ANY OF THE PATENTS IDENTIFIED IN (I) OR (II),
ABOVE; (IV) ANY AND ALL OTHER PATENTS CLAIMING AN ACCURAY IMPROVEMENT, OR
PORTION THEREOF; (V) ANY AND ALL OTHER PATENTS CLAIMING ACCURAY TECHNOLOGY,
CYBERKNIFE SYSTEMS, A CYBERHEART IMPROVEMENT (EXCEPT TO THE EXTENT THE PATENT IS
ASSIGNED TO CYBERHEART BY ACCURAY PURSUANT TO SECTION 9.1.3), OR PORTION
THEREOF, AND (VI) ANY AND ALL OTHER PATENTS THAT ARE NECESSARY OR USEFUL IN THE
CYBERHEART FIELD OR FOR ANY MAKING, USE, SALE, OFFER FOR SALE, IMPORTATION, OR
OTHER EXPLOITATION OR DISPOSITION OF ANY CYBERHEART PRODUCT OR PORTION THEREOF;
IN EACH CASE IN ANY COUNTRY OR JURISDICTION AND, IN THE CASE OF (IV), (V) AND
(VI), ABOVE, TO THE EXTENT OWNED OR OTHERWISE CONTROLLED BY ACCURAY OR ITS
CONTROLLED AFFILIATES, INCLUDING WITHOUT LIMITATION BY ASSIGNMENT FROM
CYBERHEART UNDER SECTION 9.1.2 (BUT OTHER THAN AS A RESULT OF ANY LICENSE FROM
CYBERHEART), SUCH THAT ACCURAY OR ITS CONTROLLED AFFILIATE MAY GRANT TO
CYBERHEART THE RIGHTS AND LICENSES HEREUNDER, ON THE EFFECTIVE DATE OR AT ANY
OTHER TIME AFTER THE EFFECTIVE DATE AND PRIOR TO THE IP CUTOFF DATE.
1.5
"ACCURAY TECHNOLOGY" MEANS (I) THE TECHNOLOGY SET FORTH IN
EXHIBIT B; (II) ANY TECHNOLOGY (A) THAT IS OWNED OR CONTROLLED BY ACCURAY OR ANY
OF ITS CONTROLLED AFFILIATES ON THE EFFECTIVE DATE OR AT ANY TIME AFTER THE
EFFECTIVE DATE AND PRIOR TO THE IP CUTOFF DATE AND (B) THAT IS NECESSARY OR
USEFUL FOR, OR CONTRIBUTES IN WHOLE OR IN PART TO, THE PRACTICE OF THE ACCURAY
PATENTS OR THE DEVELOPMENT, REGULATORY APPROVAL, USE, PROMOTION, MARKETING, OR
SALE OF CYBERHEART PRODUCTS; (III) ANY OTHER TECHNOLOGY DISCLOSED OR PROVIDED TO
CYBERHEART UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE PARTIES,
INCLUDING WITHOUT LIMITATION THE DELIVERABLES; AND (IV) ALL INTELLECTUAL
PROPERTY RIGHTS RELATED THERETO, OTHER THAN PATENTS.
NOTWITHSTANDING THE
FOREGOING, THE ACCURAY TECHNOLOGY SHALL INCLUDE THE MANUFACTURING TECHNOLOGY
SOLELY TO THE EXTENT THAT THE MANUFACTURING TECHNOLOGY IS REQUIRED TO BE
DISCLOSED UNDER THE TERMS OF THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN THE
PARTIES (SUCH AS THE MANUFACTURE AND SUPPLY AGREEMENT) OR HAS ACTUALLY BEEN
DISCLOSED BY ACCURAY TO CYBERHEART OR ITS DESIGNEE.
1.6
"AFFILIATE" MEANS, WITH RESPECT TO ANY PARTY, ANY PERSON THAT
CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH SUCH PARTY, ONLY SO
LONG AS SUCH CONTROL EXISTS.
AS USED IN THIS SECTION 1.6 AND IN SECTION 1.8,
"CONTROL" (AND ITS DERIVATIVES) MEANS THE POSSESSION, DIRECTLY OR INDIRECTLY, OF
THE POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF
SUCH ENTITY THROUGH OWNERSHIP OF FIFTY PERCENT (50%) OR MORE OF THE SECURITIES
ENTITLED TO ELECT THE BOARD OF DIRECTORS (OR IN THE CASE OF AN ENTITY THAT IS
NOT A CORPORATION, THE CORRESPONDING MANAGING AUTHORITY); PROVIDED THAT, FOR A
PERSON ESTABLISHED IN A JURISDICTION