share capital or other equity interests representing more than fifty percent (50%) of the outstanding voting stock or other equity interests or (b) directly or indirectly holds the voting
power or right to elect a majority of the board of directors or others performing similar functions with respect to such other Person.
Superior Proposal means any bona fide, written Acquisition Proposal (with all references to twenty percent
(20%) in the definition of Acquisition Proposal being deemed to be references to fifty percent (50%)) which the Special Committee determines in good faith (after consultation with its financial advisor and outside legal
counsel) (a) is reasonably likely to be consummated in accordance with its terms, and (b) if consummated, would be more favorable to the stockholders of the Company from a financial point of view than the Merger, in each case, taking into
account all financial, legal, financing, regulatory and other aspects of such Acquisition Proposal (including the Person or group making the Acquisition Proposal and timing of consummation thereof) and of this Agreement as the Company Board or any
committee thereof deems relevant (including any changes to the terms of this Agreement proposed by Parent and any fee to be paid by the Company pursuant to Section 9.5).
Support Agreements has the meaning set forth in the Recitals to this Agreement.
Surviving Corporation has the meaning set forth in Section 1.1.
Surviving Corporation Stock has the meaning set forth in Section 4.1(c).
Takeover Law has the meaning set forth in Section 5.18(a).
Tax or Taxes means all taxes or other governmental charges of any kind, including any federal, state,
local and non-U.S. income, profits, franchise, gross receipts, duty, stamp, payroll, sales, use, employment, enterprise, social security, environmental, property, withholding, escheat, excise, production,
value added, goods and services, or other tax, fee, duty, tariff, assessment or other governmental charge of any kind whatever, whether disputed or not, together with all interest, penalties and additions imposed with respect thereto.
Tax Return means any return, report, declaration, or statement relating to Taxes filed or required to be filed with any
Governmental Entity (including any schedules thereto or amendments to any of the foregoing).
Taxing Authority means
any Governmental Entity responsible for the administration, collection, imposition or determination of any Taxes.
Termination
Date has the meaning set forth in Section 9.2(a).
Termination Fee means an amount
equal to $12,000,000; provided, however, that if (a) the Company terminates this Agreement pursuant to Section 9.3(a) (i) prior to the No-Shop Period Start
Date or (ii) on or after the No-Shop Period Start Date and prior to the Cut Off Time to enter into an Alternative Transaction Agreement providing for a Superior Proposal with any Excluded Party or
(b) Parent terminates this Agreement pursuant to Section 9.4(b) in a circumstance in which the Company Adverse Recommendation Change giving rise to the right of termination is based on the submission of an Acquisition
Proposal (or any amendment or modification to a predecessor Acquisition Proposal) (i) prior to the No-Shop Period Start Date or (ii) on or after the No-Shop
Period Start Date and prior to the Cut Off Time by an Excluded Party, then the Termination Fee means an amount equal to $6,000,000.
Trade Secrets means all trade secrets, know-how and other confidential information,
including all proprietary and confidential: inventions, invention disclosures, improvements, processes, methods, techniques, protocols, formulae, recipes, compositions, assays, protocols, screens, algorithms, models, layouts, designs, drawings,
plans, specifications, methodologies, ideas, lab notebooks, patent data and records, experiment, test and other data and results, formulations, manufacturing production, stability, pharmacological, biological, chemical, biochemical, toxicological,
pharmaceutical, physical and analytical, safety, quality control, manufacturing, nonclinical, pre-clinical and clinical data and information, regulatory data and filings, and other proprietary and confidential
information.
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