Common use of Evaluation Material Clause in Contracts

Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or joint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees, prospects and/or results of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined below) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives, but only to the extent that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not include information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special Committee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement or otherwise) to the Company or any of its Representatives (including the Special Committee).

Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and records, financial or otherwise, (a) any information (whether in written, oralverbal, graphic, electronic, visual or otherwise, concerning or related other form) that is confidential and proprietary to the Company, any of its subsidiaries or joint venturesincluding, or any of the businesses, properties, assets, operationsbut not limited to, products, servicesproduct plans, liabilitiesmarket studies, reports, documentation, drawings, computer programs, customer and supplier lists, price lists, designs, creations, models, business materials, work-in-progress, methods of manufacture, and trade secrets, and (b) all information relating to the Company or the business, products, markets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been ), historical or may be projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished to you or any of your Representatives by or on behalf of the CompanyCompany to you or to your Representatives before, on or after the Special Committee date hereof, whether or any of their respective Representatives, either directly not marked or indirectly through one of your Approved Financing Sources (designated as defined below) (collectively, “Information”), as well as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information furnished to you or terms and conditions of your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which you can conclusively demonstrate through written records (ia) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)agreement, (iib) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information and developed by you prior to it being furnished to you by or on behalf of the CompanyCompany pursuant hereto, provided that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal, or fiduciary obligation of confidentiality to, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable)party with respect to such information, or (iiic) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that such source is not actually known by you, after reasonable inquiry, you to be bound by a confidentiality obligation (whether by agreement or otherwiseother contractual, legal, or fiduciary obligation of confidentiality with respect to such information or (d) to the Company has been or is subsequently independently developed by you or your Representatives without violating any of its Representatives (including the Special Committee)obligations hereunder.

Evaluation Material. The term “Evaluation Material” shall mean means any and all informationinformation of a confidential or proprietary nature, datain any form or medium, reports, interpretations, forecasts, business plans and records, financial written or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related relating to the Company, any of its subsidiaries or joint ventures, or any of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees, prospects and/or results of operations of any of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) or otherwise, and irrespective of the form or means of communication and whether it is labeled or otherwise identified as confidential) that previously has been or may be is furnished to you Recipient or any of your its Representatives by or on behalf of the Company following the execution and delivery of this Agreement in connection with Recipient’s consideration of a possible Transaction, including all such oral and written information of a confidential or proprietary nature relating to the Company’s financial statements, projections, evaluations, plans, programs, customers, suppliers, facilities, equipment and other assets, products, processes, manufacturing, marketing, market data, research and development, preclinical and clinical programs, data and results, pharmaceutical or biologic candidates and products, trade secrets, conceptions, know-how, patent applications that have not been published, technology, scientific and technical strategies, programs and results, including costs and prices and other confidential information and intellectual property of the Special Committee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined below) (collectivelyCompany. In addition, “Information”), as well as Evaluation Material” shall be deemed to include all notes, analyses, compilations, summaries, extracts, studies, interpretations interpretations, memoranda and other documents, material or other materials reports (in any form or medium) prepared by you Recipient or any of your Representatives, but only its Representatives to the extent that the foregoing they contain, reflect or are based upon any Information (“Derivative Information”)upon, in whole or part, the Evaluation Material furnished to Recipient or its Representatives as contemplated hereby. The Notwithstanding the foregoing, the term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not include information or any portion thereof that that: (ia) is or becomes generally available to the public (generally, other than as a result of a disclosure by you Recipient or one of its Representatives in breach of the terms of this Agreement; (b) was in the possession of Recipient or any of your its Representatives in violation of this letter agreement prior to the time it was first made available to Recipient or any other obligation of confidentiality to its Representatives by or on behalf of the Company or any of the Company)’s Representatives, (ii) provided that Recipient did not know that the source of such information was within your possession without being subject to any bound by a confidentiality agreement with or had a contractual, legal, legal or fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of information at the Company, the Special Committee time Recipient or any of their respective Recipient’s Representatives first obtained possession of such information; (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), or (iiic) becomes available to you on a non-confidential basis Recipient or any of Recipient’s Representatives from a source other than the Company or its Representatives (other than in your capacity as an officer or director one of the Company’s Representatives, in which case this clause (iii) shall provided that Recipient does not be applicable); provided, know that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with or has a contractual, legal or fiduciary obligation (whether by agreement or otherwise) of confidentiality to the Company with respect to such information at the time such information first becomes available to Recipient or any of Recipient’s Representatives; or (d) has been independently acquired or developed by Recipient or any of its Representatives without using any Evaluation Material or violating any of Recipient’s obligations under this Agreement; provided, however, that in the event, with respect to clauses (including b) and (c) above, (x) Recipient did not know that the Special Committee)source of any information was bound by a confidentiality agreement with or had a contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information at the time such information first became available to Recipient, but (y) subsequently, the Company notifies Recipient in writing or Recipient otherwise obtains knowledge (the earlier of the date of such notice or the date on which Recipient obtains such knowledge, the “Knowledge Date”) that such source of such information in fact was bound by a confidentiality agreement with or had a contractual, legal or fiduciary obligation of confidentiality to the Company with respect to such information at the time such information first became available to Recipient, then Recipient and its Representatives shall, following the Knowledge Date, treat such information as Evaluation Material hereunder.

Evaluation Material. The term “Evaluation Material” shall mean any and all informationinformation that is delivered, datadisclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, reportson or after the date hereof, interpretations, forecasts, business plans and records, financial or otherwisein each case, whether writtenor not marked or identified as confidential and regardless of the manner in which it is delivered, oraldisclosed or furnished, electronicand shall include any and all such information relating, visual directly or otherwiseindirectly, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesresearch, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects and/or results of operations of any or other business information of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to ), together with any and all information which you or any of your Representatives by otherwise learn or on behalf obtain, through observation or through analysis of the Companysuch information, the Special Committee data or any of their respective Representativesknowledge, either directly or indirectly through one of your Approved Financing Sources (as defined below) (collectively, “Information”), as well as and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, extractsstudies, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon upon, in whole or in part, the information delivered, disclosed or furnished to you or your Representatives pursuant hereto, as well as, for the avoidance of doubt, any Information information delivered via web conferencing (“Derivative Information”)such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. The Notwithstanding the foregoing, the term “Evaluation Material” shall also be deemed to include, without limitation, the status or terms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not include any information or any portion thereof that (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your or any of your Representative’s possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information on a non-confidential basis prior to it being furnished to you by or on behalf of the Company, the Special Committee Company or any of their respective Representatives (its Representatives, so long as the source of such information was not known by you to be bound by a confidentiality agreement with, or other than in your capacity contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as an officer or director a result of any such obligation to the Company, in which case this clause (ii) letter agreement shall not be applicable)thereafter apply to such Evaluation Material, or (iii) becomes available to you or any of your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity Representatives, so long as an officer or director of the Company, in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you, after reasonable inquiry, you or your applicable Representative to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any other party with respect to such information; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of its any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (iv) can be reasonably demonstrated by you or your Representatives (including to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Special Committee)Evaluation Material.

Evaluation Material. The For purposes of this Agreement, the term “Evaluation Material” shall mean all informationinformation relating to Lender or the Companies or the business, data, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or joint ventures, or any of the businesses, properties, assets, operationsservices, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations operations, cash flows or prospects of any of Lender or the foregoing Companies (whether prepared by Lender, the CompanyCompanies, or their respective advisors or otherwise) that the Lender or any of its Representatives (as defined below) furnishes or otherwise) that previously makes available or has been furnished or may be furnished made available to you or any of your Representatives by or on behalf of the Company, the Special Committee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined below) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations or other materials prepared by you or any of your Representatives, but only before, on or after the Effective Date, whether in oral, written, visual, graphic, electronic, machine recognizable, or other form or medium, or that you or your Representatives otherwise learn or obtain through observation or through analysis of such information, and shall also be deemed to the extent include all notes, summaries, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”)such information. The term “Evaluation Material” Material shall also be deemed to include, without limitation, the status or terms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does not include information or any portion thereof that which you can reasonably establish (i) is or becomes generally available to the public (other than as a result of a disclosure an act or omission by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)Representatives, (ii) was within your possession without prior to it being furnished to you or any of your Representatives by Lender or any of its Representatives, provided that the source of such information was not subject to any contractual, legal, fiduciary or other obligation of confidentiality to Lender or any other person with respect to such information, (iii) becomes available to you on a non- confidential basis from a source other than Lender or any of its Representatives, provided that the source of such information was not subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company Lender or any other person with respect to such Information prior to it being furnished to you by or on behalf of the Company, the Special Committee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable)information, or (iiiiv) becomes available to you on a non-confidential basis from a source other than the Company which was or its Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable); provided, that such source is not actually known independently developed by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement or otherwise) to the Company or any of its Representatives (including the Special Committee).

Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans (a) anything that is confidential and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related proprietary to the Company, including but not limited to, product specifications, data, know-how, designs, inventions and ideas, research and development, price lists, market studies, business plans, software (including source code and object code), systems, structures and architectures (and related improvements, devices, discoveries, concepts, methods and information), and any of its subsidiaries other information that is a trade secret, and (b) all information relating to the Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been ), historical or may be projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, disclosed or furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company to you or any of their respective to your Representatives, either directly before, on or indirectly through one of your Approved Financing Sources (after the date hereof whether or not marked or designated as defined below) (collectively, “Information”), as well as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information furnished to you or terms and conditions of your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which you can demonstrate (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company(unless required by law), (ii) was within your possession without being subject to any contractualpossession, legalor developed by you or your Representatives, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company, provided that you have no reasonable basis for concluding that the Special Committee source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), party with respect to such information or (iii) becomes available to you or your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that you have no reasonable basis for concluding that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement or otherwise) other contractual, legal or fiduciary obligation of confidentiality with respect to such information. For the avoidance of doubt, Evaluation Material shall include anything confidential and proprietary of the Company that was provided to you or your representatives prior to the Company or any of its Representatives (including the Special Committee)date hereof.

Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and recordsinformation concerning or relating to the Company or its business, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries or joint ventures, or any of the businesses, properties, assetscondition, operations, productsstrategy, servicesassets or liabilities which is or has previously been shared with, liabilitiesor furnished to, condition (financial the Recipient or otherwise)the Recipient’s Representatives, employeesbefore, prospects and/or results on or after the date of operations of any of the foregoing (whether prepared by the Company, any of its Representatives (as defined below) or otherwise) that previously has been or may be furnished to you or any of your Representatives this letter agreement by or on behalf of the Company, the Special Committee Company or any of their respective its Representatives, either directly including all information shared in connection with the Confidential Disclosure Agreement (the “Prior CDA” ) between the Parties, dated as of September 21, 2020, and including, for the avoidance of doubt, information ascertained by Recipient or indirectly its Representatives through one due diligence investigation or discussions with employees or other Representatives of your Approved Financing Sources (as defined below) (collectivelythe Company, “Information”), as well as all together with any notes, analyses, compilations, summaries, extracts, studies, interpretations interpretations, documents or other materials records prepared by you the Recipient or any of your its Representatives, but only to the extent that the foregoing containsuch notes, reflect analyses, compilations, studies, interpretations, documents or records are based upon or reflect such information. Notwithstanding any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitationother provision hereof, the status or terms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you the Recipient or any of your its Representatives in violation breach of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your the Recipient’s possession without on a non-confidential basis prior to it being subject furnished to the Recipient or its Representatives, as applicable, by or on behalf of the Company or any of its Representatives, provided that the source of such information was not known by the Recipient or its Representatives (after due inquiry) to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary or other obligation of confidentiality to to, the Company with respect to such Information prior to it being furnished to you by or on behalf of the Companyinformation, the Special Committee or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), or (iii) becomes available to you the Recipient on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that such source is not actually known by you, the Recipient or its Representatives (after reasonable due inquiry, ) to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company with respect to such information or (iv) is or was independently developed by the Recipient without the use of or reliance upon any of its Representatives (including the Special Committee)Evaluation Material, as demonstrated by contemporaneous written records.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of Company and/or its subsidiaries or joint venturesand affiliates, or any of the businesses, properties, assets, operationsbusiness, products, servicesstrategies, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company and/or its subsidiaries and affiliates (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company or any of their respective its Representatives to you or to your Representatives, either directly on or indirectly after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your Representatives otherwise learn or obtain, through one observation or through analysis of your Approved Financing Sources (as defined below) (collectivelysuch information, “Information”)data or knowledge, as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally publicly available to the public (other than as a result of a disclosure by you or any of your Representatives in violation breach of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the CompanyCompany or its Representatives pursuant hereto, provided that you had no reasonable basis for concluding that the source of such information was bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), party with respect to such information or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer Representatives, provided that you do not know or director have reason to believe that the source of the Company, in which case this clause (iii) shall not be applicable); provided, that such source information is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any of its Representatives (including the Special Committee)other party with respect to such information.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, servicesproduct candidates, liabilitiesclinical and product development plans, contractual arrangements, know-how, trade secrets, compositions, formulations, compounds, plans, designs, processes, formulas, manufacturing, discoveries, inventions and ideas, markets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the CompanyCompany to you or to your Representatives on or after the date hereof, regardless of the Special Committee manner in which it is delivered, disclosed or any furnished, or which you or your Representatives otherwise learn or obtain, through observation or analysis of their respective Representativessuch information, either directly data or indirectly through one of your Approved Financing Sources (as defined below) (collectivelyknowledge, “Information”), as well as and shall also be deemed to include all notes, analyses, presentations, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your RepresentativesRepresentatives that contain or reflect, but only to the extent that the foregoing contain, reflect in whole or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitationin part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)Representatives, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information on a non-confidential basis prior to it being furnished to you by or on behalf of the Company, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer its Representatives, provided that the source of such information was not known by you to be or director you had no reasonable basis for concluding that the source of the Company, in which case this clause (ii) shall not be applicable)such information was bound by a confidentiality agreement with, or other contractual or legal obligation of confidentiality to the Company with respect to such information, (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that such source is not actually known by you, after reasonable inquiry, you to be or you do not know or have reason to believe that the source is bound by a confidentiality agreement with, or other contractual or legal obligation (whether by agreement or otherwise) to of confidentiality to, the Company with respect to such information (iv) was independently generated by you or any of its your Representatives without reference to Evaluation Material or (including the Special Committee)v) orally disclosed information unless reduced to writing and such writing being received by you within ninety days after oral disclosure.

Evaluation Material. The term “Evaluation Material” shall mean all information, data, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related Subject to the Companyterms of, any of its subsidiaries or joint venturesand in accordance with, or any this letter agreement, the Designee may, if and to the extent he desires to do so, disclose information he obtains while a member of the businesses, properties, assets, operations, products, services, liabilities, condition (financial or otherwise), employees, prospects and/or results of operations of any of Board to the foregoing (whether prepared by the Company, any of its Representatives (as defined belowhereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public information regarding the Company. You acknowledge that this information is proprietary to the Company and may include trade secrets or otherwise) other business information the disclosure of which to any third party or publicly could harm the Company. In consideration for, and as a condition of, non-public information being furnished to you (and, subject to the restrictions in paragraph 2 of this Article II, your agents, representatives, attorneys, advisors, directors, officers and employees (other than the Designee), collectively, “Representatives”), you agree to treat any and all information concerning the Company that previously has been or may be is furnished to you or any of your Representatives (regardless of the manner in which it is furnished, including without limitation in written or electronic format or orally, gathered by visual inspection or otherwise) by any Designee, or by or on behalf of the Company, the Special Committee or together with any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined below) (collectively, “Information”), as well as all notes, analyses, compilations, summaries, extracts, studies, interpretations interpretations, documents or other materials prepared by you or any of your Representativesrecords containing, but only to the extent that the foregoing containreferring, reflect or are relating to, based upon any Information or derived from such information, in whole or in part (“Derivative Information”). The term collectively, “Evaluation Material” shall also be deemed ”), in accordance with the provisions of this letter agreement, and to include, without limitation, take or abstain from taking the status or terms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transactionother actions hereinafter set forth. 1. The term “Evaluation Material” does not include information or any portion thereof that (i) is or becomes has become generally available to the public (other than as a result of a direct or indirect disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your or any of your Representatives’ possession without prior to its being subject furnished to you by a Designee, or by or on behalf of the Company or (iii) is received from a source other than a Designee, the Company or any of its representatives; provided, that in the case of each of (ii) and (iii) above, the source of such information was not believed by you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with or other contractual, legal, legal or fiduciary or other obligation of confidentiality to the Company with respect to such Information information at the time the information was disclosed to you. 2. You hereby agree that you and your Representatives will (a) keep the Evaluation Material strictly confidential and (b) not disclose any of the Evaluation Material in any manner whatsoever without the prior to it being furnished to you by or on behalf written consent of the Company; provided, the Special Committee or however, that you may disclose any of their respective such information to your Representatives (other than in i) who need to know such information for the sole purpose of advising you and (ii) who are informed by you of the confidential nature of such information; provided, further, that you will be responsible for any violation of this letter agreement by your capacity Representatives as if they were parties hereto except that you will not be so responsible with respect to any such Representative who has executed a copy of this letter agreement as an officer Additional Signatory and delivered such signed copy to the Company. It is understood and agreed that the Designee shall not disclose to you or director your Representatives any Legal Advice (as defined below) that may be included in the Evaluation Material with respect to which such disclosure would constitute waiver of the Company, in which case this clause (ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or its Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (iii) shall not be applicable)’s attorney client privilege; provided, however, that the Designee may provide such disclosure if reputable outside legal counsel provides the Company with a written opinion that such source is disclosure will not actually known by you, after reasonable inquiry, waive the Company’s attorney client privilege with respect to such Legal Advice. “Legal Advice” as used herein shall be bound by a confidentiality obligation (whether by agreement or otherwise) solely and exclusively limited to the Company advice provided by legal counsel stating legal rights, duties, liabilities and defenses and shall not include factual information or any the formulation or analysis of its Representatives (including the Special Committee)business strategy.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows, prospects, suppliers, customers, trade secrets or intellectual property of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company to you or any of their respective to your Representatives, either directly before, on or indirectly after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your Representatives otherwise learn or obtain, through one observation or through analysis of your Approved Financing Sources (as defined below) (collectivelysuch information, “Information”)data or knowledge, as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation breach of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information on a non-confidential basis prior to it being furnished to you by or on behalf of the Company, the Special Committee Company or any of their respective Representatives (its Representatives, provided you did not know and had no reasonable basis for concluding that the source of such information was bound by a confidentiality agreement with, or other than in your capacity as an officer contractual, legal or director fiduciary obligation of confidentiality to, the Company, in which case this clause (ii) shall not be applicable), Company or any other party with respect to such information or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer Representatives, provided that you do not know or director of have reason to believe that the Company, in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any of its Representatives (including the Special Committee)other party with respect to such information.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company to you or any of their respective to your Representatives, either directly before, on or indirectly after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your Representatives otherwise learn or obtain, through one observation or through analysis of your Approved Financing Sources (as defined below) (collectivelysuch information, “Information”)data or knowledge, as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which you can conclusively establish (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)Representatives, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the CompanyCompany pursuant hereto, provided that the source of such information was not bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), party with respect to such information or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any of its Representatives (including the Special Committee)other party with respect to such information.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company to you or any of their respective to your Representatives, either directly on or indirectly after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your Representatives otherwise learn or obtain, through one observation or through analysis of your Approved Financing Sources (as defined below) (collectivelysuch information, “Information”)data or knowledge, as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation breach of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your or your Representatives’ possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the CompanyCompany pursuant hereto, provided that the source of such information was not known by you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), party with respect to such information or (iii) becomes available to you or your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that such source is not actually known by you, after reasonable inquiry, you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any other party with respect to such information, or (iv) is independently developed by or for you or your Representatives without use of its Representatives (including or reference to the Special Committee)Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company to you or any of their respective to your Representatives, either directly before, on or indirectly after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your Representatives otherwise learn or obtain, through one observation or through analysis of your Approved Financing Sources (as defined below) (collectivelysuch information, “Information”)data or knowledge, as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only to the extent Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions furnished to you or As of February 17, 2006 Page 2 your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)Representatives, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information and developed by you prior to it being furnished to you by or on behalf of the CompanyCompany pursuant hereto, provided that you had no reasonable basis (after due inquiry) for concluding that the source of such information was bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), party with respect to such information or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives Representatives, provided that you do not know or have reason to believe (other than in your capacity as an officer or director of after due inquiry) that the Company, in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any of its Representatives (including the Special Committee)other party with respect to such information.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of its subsidiaries Company or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company to you or to your Representatives, on or after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, including for the avoidance of doubt, by virtue of Alden’s position as director of the Company, the Special Committee or any of their respective Representatives, either directly or indirectly through one of your Approved Financing Sources (as defined below) (collectively, “Information”), as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only Representatives to the extent that the foregoing they contain, reflect in whole or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, without limitationin part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation breach of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information on a non-confidential basis prior to it being furnished to you by or on behalf of the Company, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director its Representatives, provided that you had no reasonable basis for concluding that the source of the Company, in which case this clause (ii) shall not be applicable)such information was bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company with respect to such information, (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer Representatives, provided that you do not know or director of have reason to believe that the Company, in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company with respect to such information or (iv) is independently developed by you or your employees or Representatives without the benefit of any of its Representatives (including the Special Committee)Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the Company, any of Company or its subsidiaries or joint ventures, or any of the businesses, properties, assets, operationsbusiness, products, services, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any of the foregoing operations, cash flows or prospects (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the CompanyCompany to you or your Representatives in connection with a Possible Transaction, whether, before, on or after the Special Committee date hereof and regardless of the manner in which it is delivered, disclosed or any furnished, or which you or your Representatives otherwise learns or obtains, to the extent a result of their respective Representativesobservation or analysis of such information, either directly data or indirectly through one of your Approved Financing Sources (as defined below) (collectivelyknowledge, “Information”), as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your Representatives, but only Representatives to the extent that the foregoing contain, reflect they contain or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation breach of this letter agreement or any other obligation of confidentiality to the Company)agreement, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information on a non-confidential basis prior to it being furnished to you by or on behalf of the Company, the Special Committee Company or any of their respective its Representatives, provided that the source of such information was not known by you or your representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, (iii) was independently developed by you or your Representatives (other than in without violating any of your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable)obligations hereunder, or (iiiiv) becomes available to you or your Representatives on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director of the CompanyRepresentatives, in which case this clause (iii) shall not be applicable); provided, provided that such source is not actually known by you, after reasonable inquiry, you or your Representatives to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any of its Representatives (including the Special Committee)other party with respect to such information.

Evaluation Material. The term “Evaluation Material” shall mean all informationinformation relating, datadirectly or indirectly, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether written, oral, electronic, visual or otherwise, concerning or related to the CompanyCompany and/or its subsidiaries, any of its subsidiaries or joint venturesaffiliates and divisions, or any of the businesses, properties, assets, operationsbusiness, products, servicesstrategies, liabilitiesmarkets, condition (financial or otherwiseother), employeesoperations, prospects and/or assets, liabilities, results of operations of any operations, cash flows or prospects of the foregoing Company and/or its subsidiaries, affiliates and divisions (whether prepared by the Company, any of its Representatives (as defined below) advisors or otherwise) that previously has been which is delivered, disclosed or may be furnished to you or any of your Representatives by or on behalf of the Company, the Special Committee Company or any of their respective its Representatives to you or to your Representatives, either directly before, on or indirectly after the date hereof, regardless of the manner in which it is delivered, disclosed or furnished, or which you or your Representatives otherwise learn or obtain, through one observation or through analysis of your Approved Financing Sources (as defined below) (collectivelysuch information, “Information”)data or knowledge, as well as and shall also be deemed to include all notes, analyses, compilations, summariesstudies, extracts, studiesforecasts, interpretations or other materials documents prepared by you or any of your RepresentativesBally Total Fitness Holding Corporation August 28, but only to the extent 2006 Representatives that the foregoing contain, reflect or are based upon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to includeupon, without limitationin whole or in part, the status information delivered, disclosed or terms and conditions of furnished to you or your Representatives pursuant hereto. Notwithstanding any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. The other provision hereof, the term “Evaluation Material” does Material shall not include information or any portion thereof that which (i) is or becomes generally available to the public (other than as a result of a disclosure by you or any of your Representatives in violation of this letter agreement or any other obligation of confidentiality to the Company)Representatives, (ii) was within your possession without being subject to any contractual, legal, fiduciary or other obligation of confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the CompanyCompany pursuant hereto, provided that you did not know or have reason to believe that the source of such information was bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, the Special Committee Company or any of their respective Representatives (other than in your capacity as an officer or director of the Companyparty with respect to such information, in which case this clause (ii) shall not be applicable), or (iii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives (other than in your capacity as an officer or director Representatives, provided that you do not know that the source of the Company, in which case this clause (iii) shall not be applicable); provided, that such source information is not actually known by you, after reasonable inquiry, to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation (whether by agreement or otherwise) to of confidentiality to, the Company or any other party with respect to such information, (iv) is independently developed by you or your employees without the benefit of its Representatives any Evaluation Material or (including v) is generally made available to third parties by the Special Committee)Company without restriction on disclosure.