Common use of Evaluation Material Clause in Contracts

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 relating to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), 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 before, on or after the date hereof, whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, analyses, compilations, 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 furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (a) 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, (b) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company 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 Company or any other party with respect to such information, or (c) becomes available to you 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 to be bound by a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunder.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (all information, data, reports, interpretations, forecasts, business plans and records, financial or otherwise, whether in written, verbal, graphicoral, electronic, visual or other form) that is confidential and proprietary otherwise, concerning or related to the Company, includingany of its subsidiaries or joint ventures, but not limited toor any of the businesses, properties, assets, operations, products, product plansservices, 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 relating to the Company or the business, products, marketsliabilities, condition (financial or otherotherwise), operationsemployees, assets, liabilities, prospects and/or results of operations, cash flows or prospects operations of any of the Company foregoing (whether prepared by the Company, any of its advisors Representatives (as defined below) or otherwise), historical ) that previously has been or projected financial statements, budgets, sales, capital spending budgets, plans, may be furnished to you or identities any of key personnel, in each case disclosed or furnished your Representatives by or on behalf of the Company to you Company, the Special Committee or to any of their respective Representatives, either directly or indirectly through one of your Representatives beforeApproved Financing Sources (as defined below) (collectively, on or after the date hereof“Information”), whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include well as all notes, 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 uponupon any Information (“Derivative Information”). The term “Evaluation Material” shall also be deemed to include, in whole or in partwithout limitation, the information furnished to you status or your Representatives pursuant heretoterms and conditions of any discussions or negotiations taking place concerning a possible Transaction or any similar transaction. Notwithstanding any other provision hereof, the The term “Evaluation Material shall Material” does not include information which you can conclusively demonstrate through written records or any portion thereof that (ai) 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), (bii) was within your possession and developed by you 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 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 toCompany, the Company Special Committee or any of their respective Representatives (other party with respect to such informationthan in your capacity as an officer or director of the Company, in which case this clause (ii) shall not be applicable), or (ciii) becomes available to you 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, provided in which case this clause (iii) shall not be applicable); provided, that such source is not actually known by you you, after reasonable inquiry, to be bound by a confidentiality obligation (whether by agreement or other contractual, legal, otherwise) to the Company or fiduciary obligation any of confidentiality with respect to such information or its Representatives (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderincluding the Special Committee).

Evaluation Material. The term “Evaluation Material” shall mean (a) any and all information (whether in written, verbal, graphic, electronic, or other form) 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 proprietary to regardless of the Companymanner in which it is delivered, 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 manufacturedisclosed or furnished, and trade secretsshall include any and all such information relating, and (b) all 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, prospects or prospects other business information of the Company (whether prepared by the Company, its advisors Representatives or otherwise), 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 together with any and all information which you or to your Representatives beforeotherwise learn or obtain, on through observation or after the date hereofthrough analysis of such information, whether data or not marked or designated as confidential or proprietary. Evaluation Material 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 any other provision hereofthe foregoing, the term “Evaluation Material Material” shall not include any information which you can conclusively demonstrate through written records that (ai) 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, (bii) was within your or any of your Representative’s possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided that 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, 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, (ciii) 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, provided that 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information 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 (div) has can be reasonably demonstrated by you or your Representatives to have been or is subsequently independently developed by you or any of your Representatives without violating any obligations hereunderuse of, reliance on or reference to the Evaluation Material.

Evaluation Material. The term “Evaluation Material” "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 relating 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, 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 or its Representatives to you or to your Representatives beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Bally Total Fitness Holding Corporation August 24, 2006 Representatives otherwise learn or obtain, through observation or through analysis of such information or data, and shall also be deemed to include all notes, analyses, compilations, studies, forecasts, interpretations or other documents prepared by you or your Representatives (including the Report) 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public (including, without limitation, any public disclosure of Evaluation Material made pursuant to Sections 2(i) and 6 of this letter agreement) other than as a result of a disclosure by you or your Representatives in violation of this letter agreement, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company or its Representatives pursuant heretohereto (whether before or after the date hereof), provided that you did not know or 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (ciii) 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 know or have reason to believe that the source of such source information is 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 or (div) has been or is subsequently developed independently developed by you or your Representatives without use of the Evaluation Material or violating any of your obligations under this letter agreement. In addition, you acknowledge and agree that, because you have requested that the Company disclose publicly certain Evaluation Material that is disclosed to you or your Representatives pursuant hereto, the Company will not disclose to you or your Representatives any information or data that the Company determines in its sole discretion could, if disclosed publicly, have an adverse impact on the Company for competitive or other reasons (such information to be defined as "CERTAIN EVALUATION MATERIAL"). You acknowledge that Certain Evaluation Material has been or will be made available to other third parties that have participated or are participating in the Company's ongoing process in respect of strategic alternatives. As promptly as practicable (and in any event on or prior to September 1, 2006) following the date hereof, the Company agrees to provide you a schedule that identifies the general categories of such information not being made available to you, but that have or will be made available to other third parties that have participated or are participating in the Company's ongoing process in respect of strategic alternatives. You agree that, unless and until you agree to hold any Certain Evaluation Material confidential on substantially the same terms and conditions as third parties who may have been or will be provided Certain Evaluation Material, and you agree to release the Company from any affirmative obligation to disclose Certain Evaluation Material hereunder, you and your Representatives will not receive access to Certain Evaluation Material as those other third parties.

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 relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material 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, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your or your Representatives’ possession and developed by you prior to it being furnished to you by or on behalf of the Company 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information information, or (div) has been or is subsequently independently developed by or for you or your Representatives without violating any obligations hereunderuse of 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 relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material 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, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe that the source is 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 with respect to such information or (div) has been is independently acquired or is subsequently independently developed by you or your Representatives employees or consultants without violating the benefit of any obligations hereunderEvaluation 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 relating relating, directly or indirectly, to the Company or the its business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 in connection with a Possible Transaction, whether, before, on or after the date hereofhereof and regardless of the manner in which it is delivered, whether disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learns or obtains, to the extent a result of observation or analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of 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, 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 without violating any of your obligations hereunder, or (civ) 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

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 relating 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, 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 or its Representatives to you or to your Representatives beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material 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, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company or its Representatives pursuant hereto, 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) 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 know or have reason to believe that the source of such source information is 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 or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

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 relating 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), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material your Representatives otherwise learn or obtain, through observation or analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, presentations, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, 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, legal, contractual or fiduciary legal obligation of confidentiality to, to the Company or any other party with respect to such information, or (ciii) becomes available to you 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 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, legal, contractual or fiduciary legal obligation of confidentiality to, the Company with respect to such information or (div) has been or is subsequently was independently developed generated by you or your Representatives without violating any obligations hereunderreference to Evaluation Material or (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 (a) any all information (whether in writtenrelating, verbaldirectly or indirectly, 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 relating to the Company Discloser 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), operations, assets, liabilities, results of operations, cash flows or prospects of the Company Discloser (whether prepared by the CompanyDiscloser, its advisors or otherwise)) which is delivered, 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 Discloser to you the Recipient or to your Representatives its Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which Recipient or proprietary. Evaluation Material its Representatives learn or obtain through observation or through analysis of such information, data or knowledge, and shall also be deemed to include all notes, analyses, presentations, compilations, studies, forecasts, interpretations or other documents prepared by you Recipient or your its Representatives that contain, reflect or are based upon, in whole or in part, the information delivered, disclosed or furnished to you Recipient or your its Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) is or becomes generally available to the public other than as a result of a disclosure by you Recipient or your Representatives in violation of this letter agreementits Representatives, (bii) was within your Recipient’s possession and developed by you on a non -confidential basis prior to it being furnished to you Recipient by or on behalf of the Company pursuant heretoDiscloser or any of its Representatives, provided that the source of such information was not known by you Recipient to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Company Discloser or any other party with respect to such information, information or (ciii) becomes available to you Recipient on a non-confidential basis from a source other than the Company Discloser or any of its Representatives, provided that such source is not known by you Recipient to be bound by a confidentiality agreement with, or other contractual, legal, legal or fiduciary obligation of confidentiality to, the Discloser or any other pa11y with respect to such information or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. The term “Evaluation Material” shall mean (a) any information (whether in written, verbal, graphic, electronic, or other form) anything that is confidential and proprietary to the Company, including, including but not limited to, productsproduct specifications, product plansdata, know-how, designs, inventions and ideas, research and development, price lists, market studies, reportsbusiness plans, documentationsoftware (including source code and object code), drawingssystems, computer programsstructures and architectures (and related improvements, customer and supplier listsdevices, price listsdiscoveries, designs, creations, models, business materials, work-in-progressconcepts, methods of manufactureand information), and any other information that is a trade secretssecret, and (b) all information relating to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), 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 Representatives, before, on or after the date hereof, hereof whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include all notes, analyses, compilations, 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 furnished to you or your Representatives pursuant hereto. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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), (bii) was within your possession and possession, or developed by you or your Representatives, prior to it being furnished to you by or on behalf of the Company pursuant heretoCompany, 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) 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 you have no reasonable basis for concluding that such source is not known by you to be bound by a confidentiality agreement or other contractual, legal, legal or fiduciary obligation of confidentiality with respect to such information or (d) has been or is subsequently independently developed by 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 without violating any obligations hereunderrepresentatives prior to the date hereof.

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 relating 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, 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 or its Representatives to you or to your Representatives Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material 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, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you prior to it being furnished to you by or on behalf of the Company pursuant hereto, provided that you did not know or 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (ciii) 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 know that the source of such source information is 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 or information, (div) has been or is subsequently independently developed by you or your Representatives employees without violating the benefit of any obligations hereunderEvaluation Material or (v) is generally made available to third parties by the Company without restriction on disclosure.

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 relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows flows, prospects, suppliers, customers, trade secrets or prospects intellectual property of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material 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, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided you did not know and 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, information or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe that the source is 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 or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. (a) As a condition to furnishing you with such information you agree to treat confidentially such information and any other information, whether written or oral, relating to the Company that ▇▇▇▇▇ ▇▇▇▇▇▇▇ or any of the Company’s officers, employees, affiliates, representatives or agents furnish, whether directly or indirectly, whether before or after the date hereof, to you or to which you are otherwise afforded access (collectively, the “Evaluation Material”). The term “Evaluation Material” shall mean (a) also include 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 relating to the Company which contains or the businessotherwise reflects or is derived, productsdirectly or indirectly, marketstherefrom, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise), 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 before, on or after the date hereof, whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include well as any and all notes, analyses, compilations, studies, forecasts, interpretations studies or other documents prepared by any of (i) you, (ii) your directors, agents, representatives and employees and advisors retained and engaged by you in connection with the Transaction (collectively, your “Agents”), or (iii) your Representatives that containprospective debt financing sources who have been identified in writing to ▇▇▇▇▇ ▇▇▇▇▇▇▇ (collectively, your “Lenders”) which contain or otherwise reflect or are based uponderived, in whole directly or in partindirectly, the information furnished to you or your Representatives pursuant heretofrom such information. Notwithstanding any other provision hereofthe foregoing, the term Evaluation Material shall does not include information which you can conclusively demonstrate through written records (ai) 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, (b) was within your possession and developed by you prior to it being furnished to you by Agents or on behalf of the Company 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 Company or any other party with respect to such information, Lenders or (cii) becomes available to you on a non-confidential basis from a source other than the Company or any of its RepresentativesAgents, provided that such source is not known by you to be bound by a confidentiality agreement or other any contractual, legal, legal or fiduciary obligation of confidentiality to the Company or any other party with respect to such information or and you and your Representatives have no reasonable basis for concluding that such source may be so bound. (db) has been or is subsequently independently developed You agree that the Evaluation Material shall be held and treated by you and your Agents and Lenders with the utmost and strictest confidence, and shall not, without the prior written consent of the Company, be disclosed by you or your Representatives Agents or Lenders in any manner whatsoever, in whole or in part, or used by you or your Agents or Lenders other than for the purpose of evaluating a Transaction. The Evaluation Material shall not, without violating the prior written consent of the Company, be disclosed to any obligations hereunderperson or entity other than your Agents or Lenders who need to know such information for the purpose of evaluating a Transaction (and in those instances only to the extent justifiable by that need); provided, however, that such Agents or Lenders must be informed by you of the confidential nature of the Evaluation Material and must agree to be bound by this letter agreement prior to any such disclosure. You agree to be responsible for any disclosure of Evaluation Material or any breach of this letter agreement by your Agents or Lenders as if they were a party hereto. In addition, you will not, and you will direct your Agents and Lenders not to, disclose that discussions or negotiations are taking place concerning a possible Transaction between you and the Company, or any of the terms, conditions or other information with respect to any such possible Transaction including the status thereof. With respect to any Evaluation Material disclosed to you that is the subject of a confidentiality agreement between the Company or ▇▇▇▇▇ ▇▇▇▇▇▇▇ and any third party, you agree to comply with the terms of such confidentiality agreements, for the benefit of each of the Company and ▇▇▇▇▇ ▇▇▇▇▇▇▇, as if you were a recipient of confidential information thereunder and a signatory thereto, but only to the extent that such confidentiality agreements are more restrictive than the terms hereof. (c) Until the earliest of the execution of a definitive agreement, an acquisition of the Company by you or a third party, or eighteen months (18) from the date of this agreement, you will not initiate or maintain contact with any officer, director, employee, agent, member, creditor, supplier, or of the Company regarding the Evaluation Material or the business, operations, prospects, or finances of the Company except ▇▇▇▇▇ ▇▇▇▇▇▇▇.

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 relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 Representatives, before, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked furnished, or designated as confidential which you or proprietary. Evaluation Material 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, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession 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 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, information or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe (after due inquiry) that the source is 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 or (d) has been or is subsequently independently developed by you or your Representatives without violating any obligations hereunderinformation.

Evaluation Material. The term “Evaluation Material” shall mean 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 (aas hereinafter defined) and may discuss such information with any and all such persons. As a result, you may receive certain non-public information (whether in written, verbal, graphic, electronic, or other form) regarding the Company. You acknowledge that this information is confidential and 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, 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. In consideration for, and trade secretsas 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 (b) other than the Designee), collectively, “Representatives”), you agree to treat any and all information relating to concerning the Company that is furnished to you or the business, products, markets, condition your Representatives (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects regardless of the Company (whether prepared manner in which it is furnished, including without limitation in written or electronic format or orally, gathered by the Company, its advisors visual inspection or otherwise), historical or projected financial statements, budgets, sales, capital spending budgets, plans) by any Designee, or identities of key personnel, in each case disclosed or furnished by or on behalf of the Company to you or to your Representatives beforeCompany, on or after the date hereof, whether or not marked or designated as confidential or proprietary. Evaluation Material shall also be deemed to include all together with any notes, analyses, compilations, 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, “Evaluation Material”), in accordance with the information furnished provisions of this letter agreement, and to you take or your Representatives pursuant heretoabstain from taking the other actions hereinafter set forth. 1. Notwithstanding any other provision hereof, the The term “Evaluation Material shall Material” does not include information which you can conclusively demonstrate through written records that (ai) 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, (bii) was within your or any of your Representatives’ possession and developed by you prior to it its being furnished to you by a Designee, or by or on behalf of the Company pursuant heretoor (iii) is received from a source other than a Designee, provided 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 known believed by you you, after inquiring of the disclosing person, to be bound by a confidentiality agreement with, with or other contractual, legal, legal or fiduciary obligation of confidentiality to, to the Company or any other party with respect to such information, or (c) becomes available to you 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 to be bound by a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information or at the time the information was disclosed to you. 2. You hereby agree that you and your Representatives will (da) 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 you 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 who has been or executed a copy of this letter agreement as an Additional Signatory and delivered such signed copy to the Company. It is subsequently independently developed by understood and agreed that the Designee shall not disclose to you or your Representatives without violating any obligations hereunderLegal 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 with a written opinion that such disclosure will not waive the Company’s attorney client privilege with respect to such Legal Advice. “Legal Advice” as used herein shall be solely and exclusively limited to the advice provided by legal counsel stating legal rights, duties, liabilities and defenses and shall not include factual information or the formulation or analysis of business strategy.

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 relating relating, directly or indirectly, to the Company or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows or prospects of the Company (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked or designated furnished, including for the avoidance of doubt, by virtue of Alden’s position as confidential or proprietary. Evaluation Material director of the Company, and shall also be deemed to include all notes, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (ciii) becomes available to you on a non-confidential basis from a source other than the Company or any of its Representatives, provided that such you do not know or have reason to believe that the source is 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 with respect to such information or (div) has been or is subsequently independently developed by you or your employees or Representatives without violating the benefit of any obligations hereunderEvaluation 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 relating relating, directly or indirectly, to the Company and its subsidiaries or the business, products, markets, condition (financial or other), operations, assets, liabilities, results of operations, cash flows flows, projections (financial or other), future plans or prospects of the Company and its subsidiaries (whether prepared by the Company, its advisors or otherwise)) which is delivered, 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 beforeRepresentatives, on or after the date hereof, whether regardless of the manner in which it is delivered, disclosed or not marked or designated as confidential or proprietary. Evaluation Material furnished, and shall also be deemed to include all notes, analyses, compilations, 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. Notwithstanding any other provision hereof, the term Evaluation Material shall not include information which you can conclusively demonstrate through written records (ai) 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, (bii) was within your or your Representatives’ possession and developed by you on a non-confidential basis prior to it being furnished to you by or on behalf of the Company pursuant heretoor any of its Representatives, provided 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, legal or fiduciary obligation of confidentiality to, the Company or any other party with respect to such information, or (c) becomes available to you 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 to be bound by a confidentiality agreement or other contractual, legal, or fiduciary obligation of confidentiality with respect to such information or (diii) has been or is subsequently independently developed by you or your Representatives or employees without violating any obligations hereunderreference to 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.