Common use of Evaluation Material Clause in Contracts

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoing, the term “Evaluation Material” shall not include any information that (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of 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 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 a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of 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 to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) that is confidential and proprietary to the Company, including, but not limited to, products, product plans, market 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 that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, relating to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise), together with any and all information which historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives otherwise learn before, on or obtainafter the date hereof, through observation whether or through analysis of such information, data not marked or knowledge, and designated as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information 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 your Representatives in violation of this letter agreement, (iib) was within your or any of your Representative’s possession on a non-confidential basis and developed by you prior to it being furnished to you by or on behalf of the Company or any of its Representativespursuant hereto, so long as provided that the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal 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 a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (iiic) 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, so long as provided that such source is not known by you or your applicable Representative to be bound by a confidentiality agreement with, or other contractual, legal 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 a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, information or (ivd) can be reasonably demonstrated has been or is subsequently independently developed by you or your Representatives to have been independently developed by you or without violating any of your Representatives without use of, reliance on or reference to the Evaluation Materialobligations hereunder.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that relating, directly or indirectly, to the Company or its business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects (whether prepared by the Company, its advisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives in connection with a Possible Transaction, whether, before, on or after the date hereof, in each case, whether or not marked or identified as confidential hereof and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn learns or obtainobtains, through to the extent a result of observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect to the extent they contain or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (iii) was independently developed by you or your Representatives without violating any of your obligations hereunder, or (iv) 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, so long as provided that such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of 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 to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the CompanyCompany or its Representatives) which is delivered, its Representatives disclosed or otherwise), together with any and all information which furnished by or on behalf of the Company to you or to your Representatives otherwise learn Representatives, before, on or obtainafter the date hereof, through observation regardless of the manner in which it is delivered, disclosed or through analysis of such information, data or knowledgefurnished, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that to the extent they contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s Representatives’ possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as provided that to your knowledge the source of such information was not known by you to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary contractual 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 a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as provided that to your knowledge such source is not known by you or your applicable Representative to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary contractual 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 a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, information or (iv) you can be reasonably demonstrated by you demonstrate is or your Representatives to have been independently was developed by you or any of your Representatives without use ofderivation from, reliance on or reference to or reliance on, or using in any manner, the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean (a) anything that is confidential and 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 and all other information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnisheda trade secret, and shall include any and (b) all such information relating, directly or indirectly, relating to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise), together with any and all information which historical or projected financial statements, budgets, sales, capital spending budgets, plans, or identities of key personnel, disclosed or furnished by or on behalf of the Company to you or to your Representatives otherwise learn Representatives, before, on or obtain, through observation after the date hereof whether or through analysis of such information, data not marked or knowledge, and designated as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information 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 your Representatives in violation of this letter agreement(unless required by law), (ii) was within your possession, or any of developed by you or your Representative’s possession on a non-confidential basis Representatives, prior to it being furnished to you by or on behalf of the Company or any of its RepresentativesCompany, so long as provided that you have no reasonable basis for concluding 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 Company or any other party with respect to such information; provided, that upon you information or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as provided that you have no reasonable basis for concluding that such source is not known by you or your applicable Representative 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; provided. For the avoidance of doubt, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result shall include anything confidential and proprietary of any such obligation the Company that was provided to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (iv) can be reasonably demonstrated by you or your Representatives to have been independently developed by you or any of your Representatives without use of, reliance on or reference representatives prior to the Evaluation Materialdate hereof.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that relating, directly or indirectly, to Company and its subsidiaries or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows, projections (financial or other), future plans or prospects of Company and its subsidiaries (whether prepared by Company, its advisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives beforeRepresentatives, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (ii) was within your or any of your Representative’s Representatives’ possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as or becomes available to you or your Representatives on a non-confidential basis from a source other than Company or any of its Representatives; provided, that you or your Representatives had no reasonable knowledge 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 Company or any other party with respect to such information; provided, that upon you information or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (iv) can be reasonably demonstrated independently developed by you or your Representatives to have been independently developed by you or employees without any of your Representatives without use of, reliance on or reference to the or use of any Evaluation Material. Notwithstanding anything herein to the contrary, the restrictions on use of Evaluation Material set forth herein shall not limit your use of any such Evaluation Materials to the extent contemplated by the Amended and Restated Strategic Collaboration Agreement, dated February 4, 2020, between you and Company.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise)) which is delivered, together with any and all information disclosed or furnished 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, or which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s Representatives’ possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representativespursuant hereto, so long as 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 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, provided that such source is 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (iv) can be reasonably demonstrated is independently developed by or for you or your Representatives to have been independently developed by you or any of your Representatives without use of, reliance on of or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise)) which is delivered, together with any and all information disclosed or furnished by or on behalf of the Company to you or to your Representatives, before, on or 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 observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you or As of February 17, 2006 Page 2 your Representatives pursuant hereto, as well as, for the avoidance of doubt, any information delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (ii) was within your or any of your Representative’s possession on a non-confidential basis and developed by you prior to it being furnished to you by or on behalf of the Company 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 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, so long as provided that you do not know or have reason to believe (after due inquiry) that the source of such information was not known by you to be is 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of 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 to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation Material.

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 and all information that is deliveredof its subsidiaries or joint ventures, disclosed or furnished by or on behalf any of the Company or its Representatives to you or to your Representatives beforebusinesses, on or after the date hereofproperties, in each caseassets, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the businessoperations, products, marketsservices, liabilities, condition (financial or otherotherwise), researchemployees, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, prospects and/or results of operations, cash flows, prospects or other business information operations of any of the Company 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”), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include as well as all notes, memoranda, analyses, compilations, summaries, extracts, studies, forecasts, interpretations or other documents materials prepared by you or any of your Representatives Representatives, but only to the extent that the foregoing contain, reflect or are based 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, upon any information delivered via web conferencing Information (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits“Derivative Information”). Notwithstanding the foregoing, the 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 information 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 agreementagreement or any other obligation of confidentiality to the Company), (ii) was within your possession without being subject to any contractual, legal, fiduciary or any other obligation of your Representative’s possession on a non-confidential basis confidentiality to the Company with respect to such Information prior to it being furnished to you by or on behalf of the Company Company, the Special Committee or any of its Representatives, so long their respective Representatives (other than in your capacity as the source an officer or director 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 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 any such obligation to the Company, in which case this letter agreement clause (ii) shall thereafter apply to such Evaluation Materialnot be applicable), 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 its Representatives (other than in your capacity as an officer or director of its Representativesthe Company, so long as in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you or your applicable Representative you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, otherwise) 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 any such obligation to its Representatives (including the Company, this letter agreement shall thereafter apply to such Evaluation Material, or (iv) can be reasonably demonstrated by you or your Representatives to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation MaterialSpecial Committee).

Evaluation Material. The term Subject to the terms of, and in accordance with, 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 Board to the Representatives (as hereinafter 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 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, “Evaluation Material” shall mean Representatives”), you agree to treat any and all information concerning the Company that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and (regardless of the manner in which it is delivered, disclosed or furnished, and shall include including without limitation in written or electronic format or orally, gathered by visual inspection or otherwise) by any and all such information relatingDesignee, directly or indirectly, to the Company by or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information on behalf of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecastsinterpretations, interpretations documents or other documents prepared by you records containing, referring, relating to, based upon or your Representatives that contain, reflect or are based uponderived from such information, in whole or in partpart (collectively, the information delivered“Evaluation Material”), disclosed or furnished to you or your Representatives pursuant hereto, as well as, for the avoidance of doubt, any information delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings in accordance with the Company provisions of this letter agreement, and to take or its Representatives or Company site visitsabstain from taking the other actions hereinafter set forth. 1. Notwithstanding the foregoing, the The term “Evaluation Material” shall does not include any information 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 your Representatives in violation of this letter agreement, (ii) was within your or any of your Representative’s Representatives’ possession on a non-confidential basis prior to it its being 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 Representativesrepresentatives; provided, so long as that in the case of each of (ii) and (iii) above, the source of such information was not known believed by you you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with, with or other contractual, legal or fiduciary obligation of confidentiality to, to the Company or any other party with respect to such 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 written consent of the Company; provided, however, that you may disclose any of such information to your Representatives (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 upon you or will be responsible for any violation of this letter agreement by your Representatives as if they were parties hereto except that you will not be so responsible with respect to any such Representative becoming aware that who has executed a copy of this letter agreement as an Additional Signatory and delivered such source was not entitled to disclose such Evaluation Material as a result of any such obligation signed copy to the Company, this letter agreement . It is understood and agreed that the Designee shall thereafter apply to such Evaluation Material, (iii) becomes available not disclose to you or any of your Representatives on a non-confidential basis from a source other than 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’s attorney client privilege; provided, however, that the Designee may provide such disclosure if reputable outside legal counsel provides the Company or any of its Representatives, so long as with a written opinion that such source is disclosure will not known by you or your applicable Representative to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, waive the Company or any other party Company’s attorney client privilege 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 Legal Advice. “Legal Advice” as a result of any such obligation used herein shall be solely and exclusively limited to the Companyadvice provided by legal counsel stating legal rights, this letter agreement duties, liabilities and defenses and shall thereafter apply to such Evaluation Material, not include factual information or (iv) can be reasonably demonstrated by you the formulation or your Representatives to have been independently developed by you or any analysis of your Representatives without use of, reliance on or reference to the Evaluation Materialbusiness strategy.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise)) which is delivered, together with any and all information which disclosed or furnished by or on behalf of the Company to you or to your Representatives otherwise learn Representatives, on or obtainafter the date hereof, through observation regardless of the manner in which it is delivered, disclosed or through analysis furnished, including for the avoidance of such informationdoubt, data or knowledgeby virtue of Alden’s position as director of the Company, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that to the extent they contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as provided that you had no reasonable basis for concluding 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 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 any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such provided that you do not know or have reason to believe that the source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, information or (iv) can be reasonably demonstrated by you or your Representatives to have been is independently developed by you or any of your employees or Representatives without use of, reliance on or reference to the benefit of any Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that relating, directly or indirectly, to the Company and/or its subsidiaries and affiliates, or the business, products, strategies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company and/or its subsidiaries and affiliates (whether prepared by the Company, its advisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives beforeRepresentatives, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally publicly available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its RepresentativesRepresentatives pursuant hereto, so long as 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 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, provided that you do not known by you know or have reason to be believe that the source of such information is 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of 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 to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, product candidates, clinical 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 other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise)) which is delivered, together with any and all information disclosed or furnished 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, or which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, presentations, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect contain or are based uponreflect, 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as provided that the source of such information was not known by you to be or you had no reasonable basis for concluding that the source of such information was bound by a confidentiality agreement with, or other contractual, contractual or legal or fiduciary obligation of confidentiality to, 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 any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as provided that such source is not known by you or your applicable Representative 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, contractual or 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 a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, or information (iv) can be reasonably demonstrated was independently generated by you or your Representatives without reference to have been independently developed Evaluation Material or (v) orally disclosed information unless reduced to writing and such writing being received by you or any of your Representatives without use of, reliance on or reference to the Evaluation Materialwithin ninety days after oral disclosure.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, flows or prospects or other business information of the Company (whether prepared by the Company, its Representatives advisors or otherwise)) which is delivered, together with any and all information disclosed or furnished by or on behalf of the Company to you or to your Representatives, before, on or 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 observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as provided that you had no reasonable basis for concluding 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 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 any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such provided that you do not know or have reason to believe that the source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, information or (iv) can be reasonably demonstrated is independently acquired or developed by you or your Representatives to have been independently developed by you employees or consultants without the benefit of any of your Representatives without use of, reliance on or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that relating, directly or indirectly, to the Company and/or its subsidiaries, affiliates and divisions, or the business, products, strategies, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company and/or its subsidiaries, affiliates and divisions (whether prepared by the Company, its advisors or otherwise) which is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives Representatives, before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects or other business information of the Company (whether prepared by the Company, its Representatives or otherwise), together with any and all information which you or your Representatives otherwise learn or obtain, through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Bally Total Fitness Holding Corporation August 28, 2006 Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation of this letter agreementRepresentatives, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that you did not know or any of its Representatives, so long as have reason to believe 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 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 any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as provided that you do not know that the source of such source information is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of 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 to have been is independently developed by you or your employees without the benefit of any of your Representatives Evaluation Material or (v) is generally made available to third parties by the Company without use of, reliance restriction on or reference to the Evaluation Materialdisclosure.

Evaluation Material. The term “Evaluation Material” shall mean any and all information that is delivered, disclosed or furnished by or on behalf of the Company or its Representatives to you or to your Representatives before, on or after the date hereof, in each case, whether or not marked or identified as confidential and regardless of the manner in which it is delivered, disclosed or furnished, and shall include any and all such information relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), research, trade secrets, software, technology, inventions, processes, books of business, operations, assets, liabilities, results of operations, cash flows, prospects prospects, suppliers, customers, trade secrets or other business information intellectual property of the Company (whether prepared by the Company, its Representatives advisors or otherwise)) which is delivered, together with any and all information disclosed or furnished by or on behalf of the Company to you or to your Representatives, before, on or 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 observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, memoranda, analyses, compilations, summaries, studies, forecasts, interpretations or other documents prepared by you or your Representatives that contain, reflect or are based 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 delivered via web conferencing (such as Zoom, Teams or WebEx) or at any in-person meetings with the Company or its Representatives or Company site visits. Notwithstanding the foregoingany other provision hereof, the term “Evaluation Material” Material shall not include any information that which (i) is or becomes generally available to the public other than as a result of a disclosure by you or your Representatives in violation breach of this letter agreement, (ii) was within your or any of your Representative’s possession on a non-confidential basis prior to it being furnished to you by or on behalf of the Company or any of its Representatives, so long as 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 contractual, legal or fiduciary obligation of confidentiality to, the 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, provided that you do not known by you know or have reason to be believe that the source is 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of any such obligation to the Company, this letter agreement shall thereafter apply to such Evaluation Material, (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, so long as such source is not known by you or your applicable Representative 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; provided, that upon you or such Representative becoming aware that such source was not entitled to disclose such Evaluation Material as a result of 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 to have been independently developed by you or any of your Representatives without use of, reliance on or reference to the Evaluation Material.