Tesla 2011 Annual Report Download - page 154

CONFIDENTIAL TREATMENT REQUESTED BY TESLA MOTORS, INC.
TESLA AND TMC CONFIDENTIAL INFORMATION
EXECUTION VERSION
NOW, THEREFORE, in consideration of the mutual promises contained herein, the Parties agree as follows:
1. DEFINITIONS
(a) “ Affiliate ” shall mean, with respect to any Party, any other party directly or indirectly controlling, controlled by, or under common
control with such Party. For purposes of this definition, “control” when used with respect to any entity means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of at least
fifty percent (50%) of voting securities, by contract or otherwise; the terms “controlling” and “controlled” have meanings correlative to the
foregoing. An entity will cease to be an Affiliate if such control relationship no longer exists. TMC’s Affiliate shall include TTC, TEMA, TMS
and TMMC, and the expression “TMC” in this Agreement may be interpreted to refer also to any one of TMC’s Affiliates whenever
circumstance requires, and for avoidance of doubt, for purposes of receiving rights under Sections 3 and 4 references to “TMC” includes all of
TMC’s Affiliates.
(b) “ Background Technology ” shall mean all Technology that: (i) was developed, conceived or owned by a Party prior to the Effective
Date; or (ii) is conceived or reduced to practice by a Party outside its performance under this Agreement.
(c) “ Business Day ” shall mean any day, other than a Saturday or Sunday, on which banks are open for business in San Francisco,
California and Tokyo, Japan.
(d) “ Confidential Information ” shall mean any information disclosed pursuant to this Agreement by one Party to the other Party during
the term of this Agreement which is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary” or
in some other manner to indicate its confidential nature, or is otherwise disclosed under circumstances that reasonably indicate that the
information being disclosed is confidential to the disclosing Party. Confidential Information may also include oral information disclosed by one
Party to the other Party in the course of the performance of this Agreement or information observed during the course of the development and
technology sharing activities contemplated by this Agreement. To the extent practicable, such information shall be designated as confidential at
the time of disclosure and reduced to a written summary, which is marked in a manner to indicate its confidential nature and delivered to the
receiving Party, within thirty (30) calendar days after its oral disclosure. As used herein, “Confidential Information” may include, without
limitation, the Tesla Technology, the TMC Technology, Qualified Disclosures, and documents relating to the development, manufacturing,
testing, and marketing of the Prototype Powertrain Systems, RAV4 Platform, and RAV4 EV which were disclosed by either Party to the other
Party, orally, in writing or by drawings or which were obtained through inspection of parts of, or equipment for, any of the foregoing. For
avoidance of doubt, all Restricted Disclosures are Confidential Information of the Party that makes the disclosure.
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***Confidential treatment requested pursuant to a request for confidential treatment filed with the Securities and Exchange Commission. Omitted portions have been filed separately with the
Commission.